Is an employer responsible for sexual harassment which takes place over social media?

Recent cases show that professional social networking has encouraged sexual harassment in the workplace. Although, such platforms are intended to encourage networking and teamwork, there are concerns that that they are being used in a way, which makes some individuals, feel offended and/or harassed.

The question is, does this behaviour expose a legal risk to an employer?

The issue is one of vicarious liability. The Equality Act contains rules, which apply to claims of discrimination or harassment. The test is whether the act complained of was done “in the course of employment”. For this purpose, “employment” includes all those who would qualify as “workers”. If the statement was made by an employee the employer will be held liable unless it can establish its statutory defence. 

So, what is a statutory defence? 

The statutory defence is - if an employer can prove that it took “all reasonable steps” to prevent the perpetrator from doing the alleged act of discrimination or from doing anything of that description. Employment Tribunals tend to hold employers to very high standards. Much depends on what an employer knew, suspected or ought to have known. If an employer can show that it had taken steps to prevent such discrimination and harassment by implementing a policy and by training, a tribunal might accept this defence.

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