In the course of employment
Whenever we are advising employers and their staff about postings on social media, two Employment Appeal Tribunal (EAT) cases always spring to mind. The first is the case of Game Retail Limited v Laws (2014). Mr Laws was employed by Game in a role which had responsibility for 100 of its stores. Mr Laws had been careful not to disclose his affiliation with his employer on his twitter profile, but he was followed by so many employees of Game that it was clear he must have some connection with the company. Game dismissed him for posting various offensive tweets regarding his own family members. The employment tribunal found that his dismissal was outside the reasonable band of responses, given that the tweets were made via Mr Laws’ personal account for private use. However the EAT disagreed, partly due to the fact that Mr Laws did not have a “private” account (i.e. it could be accessed by any twitter user, including colleagues and customers).
The second is British Waterways Board v Smith (2015) which is a classic case of an employee bringing their employer into disrepute. Mr Smith posted on his Facebook profile that he worked for British Waterways and proceeded to post content which was not only offensive, but also suggested that he might have been turning up for work call outs drunk. Despite the fact that these posts had been made two years previously, it was found that his dismissal was within the band of reasonable responses, as the employer had a genuine belief that Mr Smith had been drinking whilst on standby, which destroyed their trust and confidence in him.
However, in the recent case of Forbes v LHR Airport Limited (judgement handed down in February 2019) the EAT held that it was not reasonable to discipline an employee who had posted an offensive image online. The employee in question (DS) had posted an image of a golliwog with the caption, "Let's see how far he can travel before Facebook takes him off”. The individual who had been offended by the comment (and then raised a grievance) was only exposed to the comment because another employee had shown it to them. It is of note (following the Laws case) that DS had a private profile (only visible to her Facebook friends).
The EAT concluded that whether something is done in the course of employment, either in the 'virtual landscape' or the physical work environment, is a question of fact for the tribunal in each case. In this case, DS made the post on a private profile and she didn’t openly disclose her employer on her profile. The EAT said, in coming to its conclusion that DS’ actions were not done in the course of employment – “An employee found to be chanting racist slogans at a football match, for example, might be regarded by an employer as engaging in conduct worthy of censure. However, no reasonable person would regard such conduct as being done in the course of employment, unless there was shown to be some connection between attendance at the football match and employment that suggested otherwise”.
It’s an interesting conclusion for the court to have reached, given that had DS made the same comment in the office, and that comment was overheard by an employee (notwithstanding that the comment was not directed at that employee) it seems foreseeable that DS would have been disciplined. Indeed, the EAT made a point of emphasising “The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work”. In this case, the post was not made whilst DS was at work, but if DS had made this post on her phone from her desk at work, would this have somehow changed the affect it had on the offended employee?
From an employer’s perspective, what is most important to remember is section 109 of the Equality Act 2010, which sets out that:
“Anything done by a person (A) in the course of A's employment must be treated as also done by the employer”; and
“It does not matter whether that thing is done with the employer's or principal's knowledge or approval”.
As such, employers will potentially be vicariously liable for any discriminatory acts of your employees, including those that take place online. However, provided that the employer can demonstrate that it has taken all reasonable steps to prevent the employee from “doing that thing, or from doing anything of that description”, they will have a defence. One of the easiest ways to demonstrate an employers has taken reasonable steps to prevent discrimination in the course of employment is to train their employees on equality and diversity, standards of behaviour and have a clear social media policy in place connected to the disciplinary procedures. Such practices should also help to set expectations with regard to behaviour, which can drastically improve workplace culture.