Do social networks increase exposure to sexual harassment claims?

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There is a school of thought that new forms of digital technology have driven a new wave of sexual harassment in the workplace.

One particular development is the professional social network: an example is Facebook Workplace, which has been described as part social network, part messenger and part productivity tool for teams. A Workplace account is only visible to people within a nominated team or company, and is separate from individual accounts.

These networks can encourage teamwork and drive enthusiasm, but there is clearly potential for them to be used in such a way to make individuals feel offended or, in serious cases, harassed. One could imagine remarks being made which might, for example, be seen by some as homophobic, misogynistic or racist.

As recent events have shown, a toxic working culture can cause serious and long lasting damage to an employer’s reputation and brand among staff, customers and public alike.

It is common for those posting in chatrooms to say things that they would not say in person, and such uninhibited behaviour might spill over into a workplace-based network.

Who’s responsible?

If it does, would it expose an employer to additional legal risk? In particular, would the setting up of the network make it more likely that an employer would be held legally responsible for anything said by its staff?

In lawyers’ jargon the issue is one of vicarious liability. 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”.

Even if a statement is made anonymously – under cover of a username – if it is likely to have been made by an employee (as, in these networks, will almost always be the case) the employer will be held liable unless it can establish its statutory defence.

Statutory defence

The statutory defence to claims under the Equality Act – which is not available in other areas of law – 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 will depend on what an employer knew, suspected or ought to have known – an employer that had no knowledge of a perpetrator’s conduct until after it had occurred could escape liability.

If it had a suitable dignity at work policy and had conscientiously implemented it, by training and otherwise, a tribunal might accept this defence. This would be difficult to establish, however, if the employer was able to monitor the use of the network and failed to intervene if the tone and content of some posted material had indicated that some lines were in danger of being crossed.

Legal liability

There may also be a risk of the employer being held responsible for other forms of legal liability for which there would be no statutory defence – such as, in serious cases, harassment under the Protection from Harassment Act; defamation; breach of confidence; and liability under the Data Protection Act.

Although the common law test applied to such legal wrongs differs slightly from the statutory test under the Equality Act, a post made on a professional social network would probably be deemed to be sufficiently connected with the workplace for it to be fair to hold the employer vicariously liable for what has been written on it.

From the point of view of defamation, there is a statutory defence for the employer – as the website operator – if it quickly removes any material which is defamatory, whether or not the subject of it has made a complaint. Swift action is vital.

There are additional risks but they should be manageable, if employers consider the following:

  • 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 take that approach, then the positives of new forms of social media, in a relatively controllable environment, should outweigh the possible downsides.

Gary Freer

About Gary Freer

Gary Freer is a partner in the London office of Bryan Cave Leighton Paisner LLP
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