Donna Reynolds: Workplaces need a social media policy

I don’t care much for social media. I don’t agree with the school of thought that we must Instagram it or it didn’t happen. Perhaps that’s a strange admission for someone who regularly uses both Twitter and LinkedIn and records podcasts (we’re on our fifth series of Employment Lawyer in Your Pocket) for work purposes, but I personally prefer not to document what I do in my personal life.
Donna Reynolds is an Employment Partner with BlackaddersDonna Reynolds is an Employment Partner with Blackadders
Donna Reynolds is an Employment Partner with Blackadders

However, the reality is that, in greater numbers than ever, we’re connected in online social networks. Even I can’t deny, on occasions, it has proved to be a force for good (#MeToo sparked a national conversation about workplace sexual harassment).

Consequently, the use of social media has become a big part of our working lives. The trouble is, it’s often misused by employees and this is claimed to cost Britain’s economy billions of pounds every year through time theft, cyber bullying and data protection breaches. The other problem is, employers are often quick to come down hard on social media ‘offenders’ – maybe because it is renowned for its global reach – without giving enough thought to whether the punishment fits the crime or whether there should be punishment at all.

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A classic example is an offensive social media post not sent while at work, or on a work computer. Can it be said to have been posted ‘in the course of employment’? Not according to the Employment Appeal Tribunal in the recent case of Forbes v LHR Airport Limited UKEAT/0174/18. Mr Forbes’ colleague, DS, posted on Facebook an image of a golliwog with the caption, “Let’s see how far he can travel before Facebook takes him off”. Colleagues, BW (a Facebook friend) showed it to Mr Forbes (who was not). Mr Forbes raised a formal grievance, it was upheld and DS was disciplined. When he was later rostered to work alongside DS, Mr Forbes complained and was moved elsewhere by his employer without explanation. Mr Forbes brought claims of harassment, victimisation and discrimination on the grounds of race against his employer relying on the vicarious liability provisions of the Equality Act 2010.

Someone using social media on their phoneSomeone using social media on their phone
Someone using social media on their phone

The Employment Tribunal dismissed Mr Forbes’ claims, holding that DS had not acted in the course of her employment. She hadn’t been at work when she posted the image, hadn’t used a work computer, it was shared amongst a private group (not including Mr Forbes) and made no reference to her employer.

The EAT dismissed Mr Forbes’ appeal. Sharing an image on Facebook could, depending on the facts, be done in the course of employment, for example where the Facebook page is solely or principally used for the purpose of work, but that didn’t apply in this case. The EAT recognised that it isn’t always easy to identify whether a person is doing something in the course of their employment when that person’s work activity is conducted online at home, but if a personal social media account is “used for purposes relating to work then it might be open to the tribunal to consider that there is sufficient connection with work to render an act done of that social medial account as being done in the course of employment”. On the other hand, the EAT was of the view that, “if the link with work is tangential or more tenuous”, the tribunal might conclude that it is not.

Whilst LHR Airport Limited didn’t dismiss DS for having posted a discriminatory image, the EAT gave the example of the football fan making racist chants at a football match; the conduct couldn’t be said to have been done in the course of employment but nonetheless, the employer may decide to dismiss because of the reputational damage.

In that situation, employers would be well advised to exercise caution before taking a decision to dismiss because many of the factors considered in Forbes v LHR Airport Limited will apply including whether the social medial account was a private group; how much actual or potential reputational damage can be caused when it is seen by a handful of people?

Employers and employees would both benefit from being clearer about the type of conduct considered inappropriate and to what extent personal social media accounts should be used for work purposes as well as the extent to which outside activities more generally might be addressed at work. Having a social media policy will help set boundaries and spell out the consequences for breaching the rules.

Donna Reynolds is an Employment Partner with Blackadders