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Social media and sexual harassment: Is the employer responsible?

18 January 2018
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.

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