‘Tis the season to be jolly…and then tweet about it

Before the first bottle has even been popped, this time of year always brings headaches for employers and HR managers about the impending office Christmas party. As with all HR headaches, concerns have increased over the past few years, as the behaviour and relationships of employees have become as prevalent online as in the real world.

It is long accepted that social events, such as Christmas parties, can be considered as an extension of the workplace, and therefore employers have as much of a duty towards their staff there as they do 9-5 in the office to prevent discriminatory and harassing behaviour of others.Employers should have clear equality and disciplinary policies in place to deal with any issues, however they should also be aware that the behaviour of employees after the party, in particular the posting of comments and photos online, can amount to harassment, bullying and discrimination by employees towards their colleagues.

Of more concern is the finding of the Employment Tribunal in Otomewo v The Carphone Warehouse which said that an employer can be held vicariously liable for harassment of an employee based on unwanted comments made on Facebook by a colleague.

It is established law that misbehaviour by employees in the social media realm should be dealt with in the same way as any other misconduct issue (a view recently re-emphasised by the Employment Appeal Tribunal in British Waterways Board v Smith). However, in all case law involving social media misconduct, the crucial aspect has been the employer having a social media policy in place that their staff are aware of, that governs behaviour and that links in with other existing policies, such as equality, harassment and bullying, and disciplinary and grievance.

In order to avoid being held vicariously liable, employers must show they have taken all reasonable steps to prevent the perpetrator from committing the act. Such steps would include:

• having relevant policies in place;
• training staff on these policies;
• monitoring behaviour and, where appropriate, reminding employees of their responsibilities towards colleagues; and
• taking any complaint seriously and taking action should problems arise.

Our employment team are experienced in drafting social media policies and cover this topic as part of their employment law training service.

Here’s to a very Merry, but mindful, Christmas!