Social media and sexual harassment: Is the employer responsible?
We have seen professional social networking drive a new wave of sexual harassment in the workplace.
Although, such networking platforms can encourage teamwork and drive enthusiasm, there is clearly potential for them to be used in such a way to make individuals feel offended or, in serious cases, harassed.
It is usual for those posting on social media to say things that they would not say in person, and such behaviour might spill over into a workplace-based network.
Does this behaviour expose a legal risk to an employer?
The issue is one of vicarious liability (lawyer’s jargon!). The Equality Act contains a separate set of rules which apply to claims of discrimination or harassment. The test is whether the act complained of was done “in the course of employment”. This test will usually be applied broadly by employment tribunals. 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.
What is the statutory defence?
The statutory defence is made out if an employer can prove that it took “all reasonable steps” to prevent the assumed perpetrator from doing the alleged act of discrimination or from doing anything of that description. This defence is difficult to satisfy, and 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 discrimination and harassment over social media by, for example, implementing a workplace policy and had conscientiously implemented it, by training and otherwise, a tribunal might accept this defence.
However, if the employer was able to monitor the use of the network and failed to intervene then the employer will not be able to satisfy the requirements to of the statutory defence.
If employers consider the below, then the positives of new forms of social media, in a relatively controllable environment, should outweigh the possible downsides:
- Employers should amend their existing social media use policy (or introduce one).
- Clearly spell out what is and is not acceptable and the possible consequences of unacceptable behaviour on the network.
- Be able to show that all users have been trained.
- Monitor posts carefully, not only to check that individual posts are acceptable but also to pick up trends and pictures of how the workforce may be feeling.
- If unacceptable conduct occurs, act quickly and decisively.
If you would like to subscribe to be notified of new blog posts. Please enter your details below.
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- October 2013
- July 2013
- May 2013
‘A highly talented and resourceful lawyer’Richard Rodelli, President and CEO, Thermo Electric Inc’
The update has been informative and concise with a excellent amount and choice of subjects covered. High attendance alone shows how valuable we all find these sessions. Partners are streets ahead of new laws, legislation and regulations where little to no case law exists.Yvonne Mathurin – Head of HR – Aukett Swanke Ltd – Afternoon Update 14/09/2017
Employment Law Seminar 18th June 2014 – A very interesting session with good speakers covering a range of topicsJulie Fisher-Jones, Parliamentary & Health Service Ombudsman
Thank you so much for all your help and advice. It was nice dealing with someone who honestly caredKylea Jarrold
Thank you for all your great work on the tribunal. I am pleased with the outcome and continue to hold my breath and hope that XXX can move on.Chief Executive of City Company
A special thanks to Hina Belitz for her interesting talk on what we must take into account before employing someone at any level. She carried us through what could be a “heavy weight” topic with such ease that we could have listened to her for hours!Marilena Narbona – The Athena Network
‘Made me laugh when I should have been crying’D Rudich
“I would like to thank you for the way in which you handled my employment matters. The whole team at Partners were at all times professional, compassionate and kept me fully informed at every stage in particular Remziye helped me through a situation that I found very difficult and stressful and I cannot thank her enough, I would highly recommend Partners Services.”Individual Client
“I would like to take this opportunity to thank Remziye and Partners Employment Lawyers for the support and professional service. You were extremely knowledgeable and efficient and I would have no hesitation in using the service again.”Eileen Flatley
The Employment Law Seminar on the 18th June 2014 was professional, informative, practically interactive and enjoyable. Lovely venue – calm & helped the acoustics. Thank you.Suzanne Prince, HR Consultant, Osram
“Partners came on site to deliver a session on managing redundancies…their delivery was clear and was easily understood – there was certainly no confusing legal speak or jargon that we had to get our heads around. Partners are highly recommended”Company Training Client
‘Hina, you’re a superstar!!!’Rory Kindlon
Employment Law Seminar 6th March 2014 – The two lady speakers were great. It was really helpful having questions from the floor and they both provided really helpful case studies of the recent cases they worked on. Overall to cram all that information in just two hours, it was a good event and would like to attend more!Chetna Kerai, NatCen Social Research
A short note to say I found you and all my dealings with the company highly professional; it was a pleasure ( under the circumstances) doing business with you. You took care to listen to the detail of the case, take it on board, build a relationship with me and the aggressor , and come to a final and acceptable agreement swiftly.Individual client
Since Hina’s training day we have reduced absences by 60%Mark Jackson, Seebord
“I would like to acknowledge and appreciate the role that Partners Employment Lawyers and in particular Remziye Ozcan, played in securing a Settlement Agreement with my former employer.
Remziye was very helpful in clarifying my legal position in the debate with my employer over redeployment vs. retirement vs. redundancy. Even though we work on opposite sides of the world and in different time zones, she always responded to my queries, quickly absorbed the volumes of data on company policy and procedures which I sent her and promptly provided me sound practical advice to help achieve my objective. The whole tone of the conversation changed when my employer recognized that I had engaged professional outside help and there is no doubt in my mind that without the intervention of Partners Employment Lawyers, the debate would have been more protracted and likely more contentious.
Their charges were very reasonable and in any event the cost is more than covered by the outcome. I would have no hesitation in recommending Partners Employment Lawyers to any employee who found him or herself in a similar position.”Individual Client
Great Employment law update – Thank you.Raffelina Huber, Associate Director, Central Eastern CSU
10th September 2014 Discrimination From the Inside Out Event – “I’ll take this opportunity to say what a great seminar it was and that the passion and knowledge of professor Livingstone was truly inspiring.”Florentina Pascaru, HR Coordinator, Central & Cecil
I have been using Hina’s Penguin Guide and it’s fantasticDanish Ahmad – (Chamber of Commerce)
“Hina, thank you very much for yesterday’s employment law seminar, it was extremely informative, skilfully presented in a professional and ‘HR friendly’ manner.
I was particularly impressed by you and your team as all of you communicated your respective knowledgeable and experience in a pragmatic way, which, in my personal experience is not always the case. I have attended other legal firm’s seminars and although the content is usually good it is frequently presented using too much ‘lawyer speak’, often assuming the very worst outcome including extreme escalated litigation, which for the majority of cases is not the most likely outcome. I realise that we as HR practitioners, need to be aware of worst case scenarios but sometimes there is too much emphasis on this. “Suzanne Prince, HR Contractor
The Employment Law Seminar on the 18th June 2014 was very informative and relaxing, thank you.Kerrie Smith, HR & Office Manager, John Brown Media
I have worked with Hina Belitz on numerous complex employment issues within our business. We have an open and consultative relationship which ensures risks are addressed in a consistent manner. This has led to the honesty and openness I rely on to make key strategic decisions for the business.Di Milliard, Head of Human Resources & Recruitment Business Monitor International
“Thank you for your hard work, persistent and diligent efforts over the last few months in bringing this case to resolution.
I do not believe that we would have been able to resolve this matter without your involvement as legal advisor.
Great work and successful outcome.”
“I would like to say that Partners were very helpful in sorting out a case in my previous workforce that could have been a potentially awkward situation.
They dealt with the case really well and made me feel calm in a difficult time for me.
They were able to sort out the case quickly and were able to offer me some good advice along the way.”Individual Client
You have been affable and extremely efficient from the minute I met you. I cannot thank you enough for everything you have done for me. A million thanks once again.Saleh Abdulrahim
I could not have hoped for better assistance and expertise in resolving the recent issue around my employment than I received from Partners Employment Lawyers.
In a very stressful and unfamiliar situation for me, I was extremely grateful that Partners Employment Lawyers understood my situation quickly and perceptively, and then worked hard to secure for me the outcome that I desired.
The firm displayed a level of professionalism and sensitivity to my personal situation that I appreciated and will not forget.
At all times the lawyers were mindful of the result I desired. As the matter progressed they explained to me clearly and in balanced terms the likelihood of achieving that outcome.
I appreciated Partners Employment Lawyers also giving me thoughtful advice on other, broader points relevant to my future employment, which I now understand it was important to make clear as part of a successful outcome. Without reminding me of these, my longer-term interests, I could easily have thought about only the immediate problem at hand, which I now see would have been ultimately to my detriment.
Partners Employment Lawyers spoke with me from a more holistic perspective on my employment future than I was able to take, which this was an immense benefit to me. Giving me a calm and encompassing perspective at such moments was, itself, an immense relief to me, as was simply having someone on my side.Individual Client
“I was extremely pleased with how Remziye handled my case, a difficult and delicate dispute with my employers. I found her to be professional, courteous and understanding of my situation. My case got resolved very quickly with the end-result exceeding my expectations.
I am very grateful to Remziye for all her help and would not hesitate to recommend Remziye to my friends and family.”Individual Client
The Penguin Guide to Employment Rights will help management and workers alike to navigate this increasingly complex and important area of lawCherie Booth
Very useful, thank you – more time neededHR Administrator attendee
“A well though out and delivered employment law seminar that covered important and critical areas of employment law and issues facing employers”Fran Ryba, HR Consultant, Fran Ryba Consultancy Ltd
Hina and Remziye recently delivered employment law sessions to our London management team which focused on a range of key employment law issues. Feedback was that the sessions were excellent, informative and well presented. They discussed not only actual case law but also advised on company-relevant scenarios, based on their knowledge of our internal policies and procedures.
HR Department, Euromonitor International Ltd.