A recent case heard in the Employment Appeal Tribunal against Phones4U Limited has yet again raised important questions in the context of employees’ use of social media. This was whether a potentially discriminatory act continues throughout the period during which an online entry remains visible, so that any relevant time limit (in general three months) only begins to run when the entry is taken down. The Tribunal suggested that an online comment continues only for the period during which the entry is being actively contributed to, either by the original author or by other online users.
Mr Novak was an American employed as a store manager for the company and was injured when he fell down the stairs at work. One of his colleagues, W, made entries on his public Facebook page ridiculing Mr Novak’s accident. During a period of some seven weeks, a substantial number of Mr Novak’s colleagues commented on the page or showed their agreement to what had been written by using the “Like” or “Thumbs Up” icon.
Later, another of his colleagues, T, defaced a safety sign at work in a way which Mr Novak claimed ridiculed his accident. Other colleagues exchanged further Facebook entries which commented on the controversy which the earlier entries had triggered and upon a grievance which Mr Novak lodged. He then brought proceedings in the Employment Tribunal alleging race and disability discrimination based upon the actions of his colleagues. The disability element arose from his suffering from post concussion syndrome and related physical impairments.
In a separate posting, another colleague had taken a photo of himself as though he too had fallen down the stairs in exactly the same position as Mr Novak.
Whilst the detail, dates and the precise sequence of events are too convoluted to list for the purpose of this article (although these went to the heart of the ruling), the case does provide a telling reminder to employers that they need to have in place a clear policy on the use of social media sites both during and outside working hours. The judgment in this case is a preliminary ruling allowing the case to proceed to a full Tribunal where liability will be determined. The tribunal will be asked to decide a number of issues, not least of which will be whether the company is held responsible and therefore liable for the actions of employees during the course of their employment . This is another case to add to a spate of recent cases in which Tribunals have had to grapple with the issue of whether the employer can be held to account and pay compensation for the actions of employees in their use of social media which amount to discrimination.
This is but one of the topics which we will be covering in our forthcoming series of employment law update seminars in March.