Vicarious liability is the legal situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees; provided it can be shown that they took place 'in the course of their employment'. Social media and extreme personal views can be a toxic mix for employers and employees alike.
A colleague of an employee posted an image of a golliwog on her private Facebook page with the caption: 'let's see how far he can travel before Facebook takes him off'. The image was shared with the colleague's friends, including another worker who showed the post to the employee. The person who posted the image did apologise and receive a final written warning. Despite this the offended employee brought a claim for harassment, victimisation and discrimination against his employer.
It was held that the image was capable of giving offence but posting it on a private Facebook page meant that is was not done 'in the course of her employment' and thus, her employer was not vicariously liable for the act. What is 'in the course of employment' is a question of fact in each case.
The case is a reminder for employers to ensure that:
- Policies regarding use of social media are reviewed and properly communicated to staff
- Any complaint is actively investigated (even if it appears to be outside the course of employment)
- Review and disseminate the equality policy
To discuss this or any employment related issue, contact us.