An Employer May Be Vicariously Liable For An Employee’s Posts On Social Media
In a society where social media is more pervasive than ever and with a range of online platforms at our fingertips, the potential exposure for employers is significant if such platforms are used in the wrong way by employees. Employers risk reputational damage by being associated with offensive material, as well as potentially liability if an employee brings a discrimination claim as a result of something posted by a colleague. As such, it is important that employers have a clear understanding of the risks in relation to social media to ensure that these are managed appropriately.
The recent case of Forbes v LHR Airport Limited is a prime example of the difficulties faced by employers when an employee posts inappropriate material online.
Read on to learn what happened in the case and the practical learning points for employers! When can an employer be held liable for an employee’s actions?
In certain circumstances, an employer can be held responsible for the actions of their
employees. This is known as “vicarious liability”. In the context of discrimination, the Equality Act 2010 provides that: “Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer”. Notably, it is irrelevant whether the act is done with the employer’s knowledge or approval but an employer may have a defence if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act in question. In this context, “the course of employment” includes employment under a traditional contract of employment as well as under a contract where an individual is required to personally carry out the work. This may include an agency arrangement where the worker in question has no right to send a substitute to carry out their work. As such, the practical tips below should be borne in mind by all employers, agencies and umbrellas.
Facts of the case
In this case, an employee, Ms Stevens, posted an image on her personal Facebook page of a golliwog captioned “let’s see how far he can travel before Facebook takes him off”. Ms Stevens’ colleague (who was friends with her on Facebook) saw the post and showed it to another colleague, Mr Forbes, whilst they were at work. Mr Forbes was extremely offended by the post and complained to his line manager that racist images were being circulated in the workplace. Ms Stevens apologised and was given a final written warning. Some months later, Mr Forbes was rostered to work alongside Ms Stevens, but after complaining, he was moved to another location. He subsequently brought claims of harassment, victimisation and discrimination against his employer.
Employment Tribunal decision The tribunal dismissed the claims. Whilst it acknowledged that the image posted by Ms Stevens was offensive, it held that the act of posting the image on to a personal Facebook
page was not done “in the course of employment” and so the employer could not be
vicariously liable. Mr Forbes appealed the decision.
Employment Appeal Tribunal (“EAT”) decision
The EAT acknowledged that the distinction between activities carried out “in the course of
employment” may be unclear where the act is done online. Despite this, the EAT said it was
neither possible nor desirable to lay down hard and fast guidance on when an act may be
regarded as being carried out during the course of employment, particularly given that the
use of social media platforms is only set to increase.
Ultimately, the EAT agreed with the tribunal and dismissed Mr Forbes’ appeal. It considered
the relevant factors were that:
The image was shared on a private Facebook account.
The image was shared amongst Ms Stevens’ private Facebook friends, albeit one of
these friends happened to be a work colleague.
The post did not make reference to the employer or any other employees.
The post was not shared using the employer’s equipment.
Interestingly, the EAT noted that the outcome may have been different had Mr Forbes
brought the complaint against the colleague that showed him the image in the workplace (as
opposed to Ms Stevens sharing the image which occurred outside of work). It also
suggested that if a social media account is used for purposes relating to work, there may be
a sufficient connection such that an act done on that account would be in the course of
employment (in which case an employer could be held vicariously liable).
The EAT also confirmed that the fact that the employer treated the issue as a disciplinary
matter was not determinative of whether the post occurred during the course of employment.
It confirmed that an employer is at liberty, subject to its policies, to take disciplinary action in
circumstances where it considers such material to be potentially damaging to its reputation.
Practical tips for employers
Whilst this decision will no doubt be welcomed by employers, it is important to remember
that cases such as this are very fact-sensitive, making it even more important for employers
to ensure that all reasonable steps have been taken to prevent employees from engaging in
Whilst there are no hard and fast legal requirements to demonstrate that all reasonable
steps have been taken, as a matter of good practice employers should consider the
Implementing and maintaining an equality policy and ensuring workers are aware of this.
Monitoring the equality policy and updating when appropriate.
Providing equal opportunities training.
Aside from the issue of potential vicarious liability, employers will also be concerned to
minimise any potential reputational risks arising from offensive or inappropriate posts by
employees on social media. As such, it is sensible for employers to ensure they have clear
policies in place setting out their expectations around use of social media as well as clear
enforcement strategies. Breach of any such policy will often justify disciplinary action against
the employee and an employer’s policies should clearly set this out.
This bulletin is for general guidance purposes only and should not be used for any other
purpose. Brabners is a Limited Liability Partnership
Copied from FSCA website on 24 August 2019
Off-Payroll Rules For The Private Sector
The government has published the draft legislation for the next Finance Bill including the rules for off-payroll working in the private sector. The legislation is open for consultation until 5 September 2019.
The new rules will apply from April 2020 and the effect of these rules, if they apply to
intermediaries, typically Personal Service Companies (PSC), will be:
the medium or large business (or an agency paying the PSC) will calculate a 'deemed
payment' based on the fees the PSC has charged for the services of the individual
generally, the entity that pays the PSC for the services must deduct PAYE and employee
National Insurance contributions (NICs) as if the deemed payment is a salary paid to an
the paying entity will have to pay to HMRC not only the PAYE and NICs deducted from the
deemed payment but also employer NICs on the deemed payment
the net amount received by the PSC can be passed onto the individual without the company
deducting any further PAYE and NICs.
Please contact us for advice on how these changes will impact your business.
Internet link: GOV.UK finance bill
Limited Company Expenses – What can you Claim?
One of the main advantages of being a limited company contractor is that you can claim tax relief on business expenses. This reduces your profit which means
you pay less Corporation Tax. However, it’s important to know what constitutes an allowable business expense so that you run your limited company in a tax
efficient way while complying with HMRC’s rules.
Expenses you claim through your limited company must be ‘wholly and exclusively’ for the business. On the face of it, this guidance should be simple to follow. However, there are some less clear situations – for example, it may be that you work from home and use broadband and your landline phone for both business and personal use. Here we explain how to manage your limited company expenses
What expenses can you claim through your limited company?
All accountancy fees associated with your limited company can be classed as a business expense.
You cannot claim tax relief on business entertainment or gifts though you can claim for a Christmas party. Employees may invite a partner but the expenditure must not exceed £150 inc VAT per person.
You can claim tax relief on the cost of equipment you need to perform your work including computers, phones and furniture such as desks and chairs. As long as personal need is ‘insignificant’ HMRC will not treat it as benefit in kind which has different tax implications.
You can claim for eyesight tests as long as you can prove it’s necessary for the use of work-related visual display equipment.
The cost of medical insurance cannot be claimed as a business expense – it would be considered as a ‘benefit in kind’ and subject to different tax rules. Your company claim tax relief on medical insurance for an employee working abroad and for an annual check-up.
Telephones & broadband
As long as your mobile phone and landline phone contracts are between your company and the service provider, you can claim tax relief if your company pays your entire personal phone bill then it becomes subject to the ‘benefit in kind’ rules. You can claim for business calls made from your personal phone but will need evidence such as a bill.
Food & Drinks
You can also claim for food and drink. Lunch can be claimed if you’re out for 5 hours or more and dinner if you’re out for 10 hours or more.
You can claim tax relief on the cost of accommodation when you travel to a temporary business-related location, though don’t get carried away as this cost must be considered to be reasonable.
You can claim for all stationery costs including postage, printer ink, paper and pens.
You can claim tax relief on membership of HMRC-approved professional bodies relevant to your work.
You can claim tax relief on membership of HMRC-approved professional bodies relevant to your work.
Salaries & National Insurance
Salaries paid to employees or Directors are allowable expenses, as are National Insurance Contributions.
You can claim £4 a week for using your home office if you can prove that you regularly spend time working at home.
Training courses which are applicable to your work are an allowable business expense.
Travel expenses are allowed but you must be able to demonstrate that the journey is necessary for your work and that it is not normal commuting between your home and a permanent workplace. Travel expenses can include vehicle insurance, fuel, parking, tolls, fares for trains, buses, planes and taxis.
Contact us TODAY to find out more and discuss your individual requirement
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