Social media and the workplace: why employment law is vital

Social media in business can bring a multitude of benefits. Promotions and advertising. The sharing of thought and views. Boosting profile and publicity. The list goes on.

Used effectively, social media can encourage web hits, widen stakeholder reach, and positively impact on your bottom line. However, sometimes the boundaries between work and personal use can become blurred and lead to an unnecessarily messy conclusion.

So, when is it appropriate for an employee to use social media during work hours? Are these posts work-related or personal? Can the use of social media by an employee outside of work still damage the reputation of their organisation?

Two contrasting cases recently highlighted the impact that social media can have on the workplace and the necessity for employers to be very aware of how to deal with such matters.

Forbes v LHR Airport Limited

In the case of Forbes v LHR Aiport Limited, an employee posted a discriminatory image of a 'golliwog doll' on their personal Facebook account with the caption “Let’s see how far he can travel before Facebook takes him off”.

One of the employee’s colleagues saw this post on Facebook and showed it to a security officer colleague (the claimant), who did not have a Facebook account.

What happened next?

The claimant objected and raised a formal grievance and the colleague who posted the image was disciplined. When the two were later rostered to work alongside each other, the claimant complained and was moved to another location.

The claimant brought claims of harassment, victimisation, and discrimination on grounds of race. The key issue in the case was whether the act of posting the image was done “in the course of employment.”

What does the law say?

In some cases, an employer can be liable for acts carried out by an employee in the course of their employment. This concept underpins all harassment cases and is a fundamental principle of discrimination law under the Equality Act.

In this case, the Employment Appeal Tribunal (EAT) ruled that the act of posting the image on a private Facebook account was not done “in the course of employment,” even though the image was shared with a Facebook friend who happened to be a colleague.

Whether an act is done in the course of employment will be a question of fact for the tribunal in each case having regard to all the circumstances; in this case, the EAT held that the employer was not liable for harassment when their employee posted the racially offensive image.

The conclusion?

The EAT accepted that there may be many circumstances in which sharing an image on Facebook could be found to be done in the course of employment, such as where the Facebook page is solely or principally used for work purposes.

Here, the act was not done at work, and there was no reference to the employer at all. It was, therefore, seen as not connected, and not in the course of employment and the employer was not liable.

BC v Chief Constable Police Service of Scotland

Article 8 of the European Convention of Human Rights (ECHR) provides that.

“Everyone has the right to respect for their private and family life, their home and their correspondence.”

In this second case, the issue was whether the use of WhatsApp messages - to bring disciplinary proceedings against police officers - was a breach of this right to privacy.

The case involved a detective constable who was leading an investigation into alleged sexual offences within the Police Service of Scotland (PSS).

What happened next?

In the course of this investigation, the detective found messages sent by WhatsApp on a phone belonging to a suspect who was a police officer. These messages formed part of two group chats between officers.

The messages included degrading sexist, racist, and homophobic comments, and as a result, misconduct charges under internal regulations were brought against several officers.

These officers sought to argue that using their WhatsApp messages to bring non-criminal misconduct proceedings was unlawful and a breach of their Article 8 rights.

What does the law say?

The court ruled that it was not a breach of their rights.

The basis of this decision was because individuals who are subject to professional standards, or working in otherwise regulated industries, could not expect such messages to be private.

The case is one of the first decisions considering how the content of WhatsApp messages might be used in a work context.

The conclusion?

The court was clear that for the average individual who does not work in a regulated environment, messages such as this would remain private regardless of unpalatable content.

However, for other individuals who are subject to professional standards, the opposite view can be taken. This may, therefore, include solicitors, barristers, doctors and financial-services workers, but could extend to individuals working in other regulated sectors.

Lessons for employers

Both cases emphasise the impact which social media can have on workplace situations arising between employees and their employers.

These examples show that it is vital:

• Employers have a clear and documented social-media policy.
• Regular and appropriate staff training reinforces procedures.
• Effective communication of the above takes place with all employees.

Defending claims and avoiding liability for acts of harassment (carried out in the course of employment by employees against colleagues) could prove extremely complex, difficult and expensive without such documentation and procedures in place.