Posting on Social Media: A Harmless Joke or Unlawful Harassment?

Posting on Social Media: A Harmless Joke or Unlawful Harassment?

This article looks specifically at how social media content can potentially lead to claims of harassment in the workplace.

The use of social media has grown phenomenally particularly since the launch of Facebook 16 years ago, with people increasingly operating their social lives online and merging the boundaries of their personal and professional lives. The misuse of social media platforms, however, can create risks for both employers and employees alike.

Harassment under the Equality Act 2010 (EQA) is a type of discrimination. Harassment is defined in the EQA as ‘unwanted conduct that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person’. Unwanted conduct of this nature will amount to unlawful discrimination if it relates to one of the relevant ‘protected characteristics’ defined by the EQA. These characteristics include: sex, gender reassignment, race, religion or belief, sexual orientation, disability and age.

A common misconception is that harassment is behaviour carried out over a period of time. Harassment, however, can be a one-off incident such as an employee making a joke about a colleague’s age or expressing transphobic views on social media, both of which could amount to unlawful harassment on the grounds of age or gender reassignment respectively.

But it was just ‘banter’…

The crucial point to note here is what one person may see as harmless banter, another may find deeply offensive. In the eyes of the law, it’s only the subjective experience of the individual on the receiving end of the ‘banter’ or joke that matters. The majority of employees actually have no idea how comments on social media platforms can lead to discrimination and harassment in the workplace.

Inappropriate flirtatious banter via WhatsApp to a fellow colleague, for example, could amount to sexual harassment. Even if the individual sending the messages had good intentions, such conduct could have the effect of creating a hostile or offensive environment for their colleague.

Claims for harassment can also potentially be brought by an individual even if they do not have the protected characteristic themselves. As an example, a non-disabled employee views a Facebook post by a colleague who is posting videos mocking people with autism. Whilst the employee does not have a disability themselves, if, for example, their daughter is severely disabled, they may find the Facebook post humiliating and degrading. This could potentially amount to harassment on the grounds of their ‘association’ with someone with a disability.

Where comments or jokes are made via an online platform (in the same way as for comments made outside social media) – there is a fine line between posting a joke or making a comment and inappropriate behaviour that leads to someone feeling uncomfortable, even harassed.

So…who is liable for ill-judged social media content?

The answer is potentially both employers and employees.

An employer may be held responsible for an employee posting social media content that amounts to a discriminatory act, if such communication is deemed to have taken place ‘in the course of employment’. Unlawful conduct committed by an employee is treated as having been committed by the employer as well, whether or not it was done with the employer’s knowledge or approval, thus rendering the employer ‘vicariously liable’. Whilst this remains a grey area in legal terms, it’s likely that communications via social media will be deemed to be ‘in the course of employment’ even if such content is posted outside normal working hours and from a personal account.

Case law: In a case against The Carphone Warehouse, two members of staff posted a status update on their Manager’s Facebook page, without his permission or knowledge. The status update read: ’finally came out of the closet. I am gay and proud’. In light of the fact that this involved dealings between staff and a manager, the employer was found to be vicariously liable for the conduct which amounted to harassment on the grounds of sexual orientation.

As far as employee responsibility is concerned, inappropriate online content can quickly become a work-related issue. This can potentially result in a breach of Equal Opportunities & Anti-Bullying & Anti-Harassment policies amounting to a potentially fair reason to dismiss someone.

Many employees assume that posting online from a personal account means their posts are private. This isn’t necessarily the case. What is posted online is probably more public than in the ‘real’ world and can easily reach an audience far beyond what was intended or expected. Even if profiles are set to private, a friend or a connection’s ability to screenshot, copy and forward to their employer is not limited.

Case law: In a case against Teletech UK Ltd, an employee posted obscene comments on his Facebook page from home about the alleged promiscuity of a female colleague, who subsequently found out about the post by another colleague. The Employment Tribunal agreed with the decision to dismiss the employee on the grounds of unlawful harassment and breach of Teletech’s policies and procedures.

Can employers defend a Social Media Harassment claim?

The informality of social media leads to a greater risk for an employer. It may be possible for employers to defend claims that they are vicariously liable for the discriminatory actions of their employees on social media, if the employer can show that they took ‘all reasonable steps’ to prevent their employees from committing the unlawful conduct. Such reasonable steps might include having well-drafted Equal Opportunities & Anti-Harassment & Anti-Bullying policies in place, providing equality training to all employees and ensuring regular refresher training takes place. In a recent case, a decision was upheld that staff equality training had become stale after 20 months and the employer’s failure to refresh the training meant it couldn’t rely on the ’all reasonable steps’ defence to a race harassment claim.

 Top Tips:

• Adopt a zero-tolerance approach to any forms of discrimination, harassment or bullying in the workplace, including on social media platforms, by having an Equal Opportunities & Anti-Bullying & Anti-Harassment policy in place and providing regular refresher training.
• Have a clearly communicated policy on the use of social media. Such policies should remind employees of the standards of behaviour expected of them when they are posting on social media and the consequences of online misconduct.
• Encourage employees to give careful consideration to who they are ‘friends’ with on social media.
• Remind employees that social media is inherently public in nature so their posts could be easily spread and be accessible to an unintended audience.
• Ensure employees fully understand that it’s inappropriate to make any jokes or comments online that could amount to harassment or discrimination (i.e. linked to a relevant protected characteristic), even if they think a colleague will find their post humorous.
• Remind employees that a person’s sensibilities can change and it’s no defence to argue that a colleague didn’t previously object to, for example, homophobic jokes.
• Foster an environment where people are sensitive to each other’s needs and beliefs and have empathy and respect for one another. Remember, bullying and harassment is about the subjective experience of the person on the receiving end of the unwanted online content.
• Remind employees that inappropriate online ‘banter’ outside the workplace can still amount to workplace harassment if it is deemed to have taken place ‘in the course of employment’.
• Investigate any complaints made by employees about harassment in a non-discriminatory way.

Contact us

The GatekeeperHR team is here to help. GatekeeperHR is a fixed cost, employment law and HR retainer service which provides businesses with access to a dedicated team of experienced lawyers and HR professionals who you can speak to, or meet face-to-face, at any time. The service includes a full HR compliance audit, access to an online portal full of valuable employment law and HR resources and an annual training session on topics of your choosing.

If you need HR support or advice or wish to discuss how GatekeeperHR can ensure that your employment documentation is legally compliant, contact Jenny Reardon, a member of our GatekeeperHR team, on e. JennyReardon@rixandkay.co.uk or visit the GatekeeperHR website for more information on how we can help you.

If you need Employment Law advice to discuss how these situations could affect your business, contact Elaine Abbs, a solicitor with our Employment team for more information on how legislative changes could affect your business.