Social media can be a mix of personal and public messages. People don’t always maintain a professional standard when sharing with friends and family, but the public nature of social media makes it easy to link your employees to your business. As a business, you don’t want your hard-earned reputation undermined by an employee’s poorly judged post. So how could you protect your business? 
In a recent case, the Employment Appeals Tribunal did not rule out holding employers liable for staff posts online. In this case, LHR Airport managed to avoid liability thanks to their policies and their disciplinary procedure. 
 
The case in question: Forbes v LHR Airport 
 
Ms S, an employee of LHR Airport, shared an offensive picture with her ‘friends’ list on her private Facebook account. This list included a colleague who showed the picture to a third colleague, Mr Forbes, who was not a Facebook ‘friend’ of Ms S. Mr Forbes registered an official grievance; Ms S apologised and received a final written warning. Mr Forbes claimed harassment, victimisation and discrimination against his employer, LHR Airport. 
 
It was accepted that the picture could give rise to racial offence. The decision for the Employment Appeals Tribunal to make was whether Ms S had made the post ‘in the course of employment’, which would make LHR Airport vicariously liable as her employer. 
The Employment Appeals Tribunal found that the post was not made in the course of employment but emphasised that each case would vary based on its specific circumstances. Some posts may be found to be ‘in the course of employment’ but it would be up to the tribunal to decide based upon the facts of each case. 
 
So, when is a post made ‘in the course of employment’? 
 
The Employment Appeals Tribunal was clear that it would not be possible or desirable to lay down strict guidance about social media, especially as it continues to develop and be used more widely. 
 
The Employment Tribunal gave examples of when a Facebook post might have been made in the course of employment, including where the profile was used mainly for communicating with colleagues or raising work-related matters. 
 
Other important factors discussed by the tribunal were whether the post was made from work equipment or during work time and whether the post referred to the employer or any of its employees. It also looked at whether the account was private or public, and whether the list of friends included many colleagues. 
 
How do I protect my business? 
 
Employers can reduce the risk of liability by showing that they took reasonable steps to prevent the incident at the centre of the claim. 
One way to demonstrate this is to implement social media policies and training. This could include encouraging staff not to list their workplace on non-work profiles, to make full use of privacy settings or to include a disclaimer on their profiles. You might ask staff not to use social media during work time or on work equipment, although you may need to weigh the benefits of this against the inconvenience and possible unpopularity. 
 
Another option is to ensure that you have policies and training about equality and diversity and to maintain a robust disciplinary procedure to uphold clear standards of behaviour. Mr Forbes claimed that LHR Airport was taking responsibility for the act by taking disciplinary action, but the tribunal disagreed. Maintaining high standards will act as a defence, but you must be sure to respond in a way allowed by your employment contracts and policies or you may find yourself facing a claim for wrongful dismissal
 
We can help you establish policies and disciplinary procedures to protect your business. Get in touch for advice. 
 
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