Discriminatory comments by employees on social media: When are employers liable?

If an employee discriminates against someone else based on a ‘protected characteristic’, by law their employer could also be held responsible. This is known as 'vicarious liability'.

Whether the employee and employer are both held responsible depends on whether the discrimination is linked to the employee's work. The law describes this relationship as 'acting in the course of employment'. The discrimination could happen at work or outside the workplace, or through social media that's linked to work.

An employer might not be held responsible if an employment tribunal decides they took all reasonable steps to try to prevent discrimination, harassment and victimisation by staff. 

ACAS guidance suggests that employers can help prevent discrimination in the workplace by steps including:

·               having an up-to-date equality policy

·               providing regular anti-discrimination training to staff

·               making it clear how staff can complain if discrimination happens

·               regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships 

 In a recent tribunal case is a reminder that employers can be held responsible for their employees’ discriminatory conduct on social media and messaging apps where this is linked to their work.  In this case, an operations clerk of Somali origin who wore a hijab, worked for a courier company in the export office.  Following an argument the claimant had with her colleagues in the office regarding crime and race, she used a colleague’s login details to log into her computer at work. On logging into the computer, the claimant saw a ‘WhatsApp group chat.’  The chat group included the claimant’s manager and three of her colleagues. The chat contained some threats of physical violence towards the claimant and discriminatory comments related to her religion and sex.  It was littered with laughing emojis and emojis of women wearing the hijab. The claimant took a screen shot of the chat.  The claimant logged into her colleague’s computer again a few days later. She noticed that the WhatsApp chat continued where further discriminatory and offensive comments were made against her and the chat group’s icon had been changed to a black hijab image. The claimant reported the WhatsApp group chats to her employer’s HR personnel, who forwarded the contents to the company CEO.  The CEO who described the chat as ‘puerile and deeply unpleasant’ met with the claimant and agreed that the first priority was to quickly move the claimant and a colleague out of the export office and into a different place away from the colleagues who had participated in the WhatsApp conversation to minimize the contact with them while he carried out a disciplinary investigation. Following the investigation, the CEO issued the manager who participated in the chat with a final written warning and dismissed the colleagues who had also participated and who were still in their probation period.  The claimant also reported the racially discriminatory comments her colleagues made to her during the argument concerning race and crime.  Her manager refused to investigate this incident on the basis that it would simply be one person’s word against another, which would just go ‘around and around in circles’.

The claimant resigned and issued tribunal proceedings. The Tribunal found that the comments made on the WhatsApp group chat constituted unlawful racial harassment. The Tribunal found that the content of the WhatsApp discussion was unwanted conduct contrary to the Equality Act 2010 that had the effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for the claimant. The Tribunal found that the employer’s response had been inadequate given the extreme content of the WhatsApp chat and the fact that the claimant continued to have contact with her manager at work, although she had been moved to a different office. It was clear to the Tribunal in this case that the employer had not done enough to prevent the discrimination occurring or continuing and that the discrimination had clearly occurred “in the course of employment”.   

By contrast, in another recent case, the Employment Appeal Tribunal (EAT) considered whether an employee’s discriminatory acts on social media had occurred “in the course of employment”, in which case her employer would have been potentially liable for them.

In this case, the claimant worked as a security officer at London Heathrow Airport. His colleague, posted a racist image on her private Facebook account. Another colleague, who was Facebook friends with his colleague, showed the post to the claimant, who raised a complaint of race discrimination with his employer. The claimant’s grievance was upheld and his colleague received a final written warning.

Not satisfied with the outcome, the claimant brought race discrimination claims against his employer. The Employment Tribunal dismissed the claims due to the fact that the claimant’s colleague had not posted the racist image “in the course of employment”. The claimant appealed, arguing that at the time he was shown the post by his colleague, he was at work.

The EAT dismissed the appeal, holding that the discriminatory acts had not occurred “in the course of employment” and that the Tribunal had been correct to take into account the fact that the claimant’s colleague had not been at work when she posted the racist image (which was the discriminatory act complained of). The EAT also considered several other relevant factors, including that she had not used work equipment to upload the post, her Facebook account was private and the image had made no reference to the employer or any of its employees. On this basis, the EAT ruled that the employer was not liable for the discriminatory acts.