What happens on social media, stays on social media

August 19, 2019

The Employment Appeal Tribunal (EAT) has recently addressed and confirmed the position of whether, or not, social media posts fall within the scope of employment. It has been confirmed that an employer is not responsible, or liable, for social media posts or comments where an employee is not “acting in the course of his/her employment”.

The decision in Forbes -v- LHR Airport Limited [2019] does not mean that social media posts will never be considered the responsibility of an employer, but it has given guidance to help employers to establish when it is safe to assume that it won’t be.

It is important to note the words of the EAT in this judgement that “no clear boundary … can be defined” however, the following factors suggest that an employee’s social media posts will not be something that an employer can be responsible for:

  • The source of the post – specifically whether the social media is private rather than public (this case concerned a Facebook post that an aggrieved employee (“F”) was shown by another employee)
  • The timing of the post – If the post takes place outside of work. In this case the employee (“S”) who posted the picture which caused offence posted it;
  • in their own time,
  • after work,
  • from a place that was not work,
  • on a personal internet enabled device (not work equipment).
  • The expectation that the post would be shown to others – Where social media is shared privately, Employers should question whether the employee who posts it could have expected that the image on a private, non-work-related Facebook page, to a group of friends who were mainly not from work be shared with another individual that they worked with. Furthermore, in this case S did not name the Employer or any colleagues in the post
  • The existence of a dignity at work policy (or equivalent) – Employers should promote equal opportunities, anti-harassment and dignity at work. (in this case F complained and raised a grievance about what they felt was an offensive and racist post and the Employer upheld the grievance and acted against S, giving them a final written warning for their behaviour which was considered to be a breach for the Dignity at Work policy. F was later put on a shift alongside S and complained that they should not have to work together following the grievance. The employer moved F (not S) to work elsewhere which led F to bring claims for victimisation, harassment and race discrimination.

The rulings in this case were considered from the perspective of whether a lay person would consider that the sharing of an image, on a private social media platform, outside of the workplace is comparable to say a private conversation in a pub with a group of friends. Its clear that the lines between the real and virtual world can often be blurred but employers should investigate thoroughly and decide each case on its merits. This case further reinforces the importance of Employers having and enforcing policies which protect and promote dignity in the workplace and prevent discrimination.

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