05 Aug 2011

Social media misuse: Who is liable under discrimination law?

by Millen Lo, Leigh Howard

If an employer does decide to give its employees access to social media it is important to manage expectations and behaviours by setting out and communicating clear boundaries and conditions of use.

Blogging, updating your status and tweeting have become an important part of human interaction.

Social media is also making its presence felt in the workplace, and, increasingly, in workplace laws. Facebook profiles have been tendered as evidence in workers' compensation cases, and employers have even dismissed employees through Facebook.

Fair Work Australia has been called upon to decide whether dismissals were unfair when:

  • an employee posted a disparaging blog about an employer;
  • an employee took sick leave for an illegitimate purpose (which was uncovered via photos uploaded to Facebook); and
  • an employee was using social media excessively during work time.

Despite the risks involved in allowing employees access to social media in the workplace, including reported concerns about impact on productivity and work outputs, many Australian employers do not restrict employees' access to social media. And why? Commonly cited reasons include fostering a workforce that retains a competitive edge, and enabling employees to promote the employer's business as well as conduct the employer's business.

Nonetheless, it is becoming apparent that employers need to provide clearer guidance to employees to ensure that they use social media responsibly in the workplace, and any failure to do so could potentially leave an employer exposed to liability including claims regarding unlawful discrimination and sexual harassment.

Can employers be liable for the out-of-hours conduct of its employees?

Under anti-discrimination laws, employers can be vicariously liable for the discriminating conduct of their employees if it can be shown that the act is done in connection with employment and there has been a failure to take reasonable steps or precautions to prevent the conduct from occurring.

But how does one establish a "connection" in the social media context, when employees use social media platforms for private purposes which are unrelated to the employment relationship?

We are yet to see in Australia any well developed anti-discrimination case law concerning the use of social media. That said, previous discrimination cases not involving social media suggest a requisite connection can arise when an employer effectively creates an opportunity for discriminating conduct to occur by sanctioning employees' access to social media sites through its IT systems, whether that be on-site or remotely.

So, for example, in one case an employer was found vicariously liable for sexual harassment that occurred out-of-hours between two employees while they stayed in accommodation provided by the employer. As Justice Kiefel said,

"Each case will turn on its facts and it may be that it is difficult to draw the line in some cases. This is not such a case. The conduct in question occurred between two employees in accommodation provided by the employer as an incident of employment…These conditions in part created an opportunity in which the conduct could occur…The conditions created in connection with the employment allowed for it to occur at any time."

In another, Federal Magistrate Connolly found the employer liable for out-of-hours conduct because it "was an extension or continuation of [the] pattern of behaviour that had started and continued to develop in the workplace."

Therefore, at least in the anti-discrimination space, there is a recognition that discriminatory and harassing conduct does not necessarily have a cut-off in terms of working hours, and that employers may in some circumstances be vicariously liable for any of their employees' offending conduct, so long as there is a requisite connection to the employment.

What should employers do?

The instinctive reaction is to ban the use of social media at work, but this might not be an option for employers who wish to make the most out of social media as a business tool.

If an employer does decide to give its employees access to social media it is important to manage expectations and behaviours by setting out and communicating clear boundaries and conditions of use.

It is therefore fundamental that employers implement a comprehensive social media policy that contains clear guidelines on how to responsibly use social media, including expectations and obligations under anti-discrimination laws.

The policy should include content at the very least that:

  • makes clear that access to social media is provided on the basis that it will be used reasonably and appropriately, without damaging the employer's reputation and business;
  • that clearly articulates what is acceptable use and unacceptable use of social media in the work context, including that it will not be used to discriminate, harass or bully other co-workers;
  • that the policy applies also in relation to access to social media when it is accessed remotely using the employer's IT systems (and not in the physical workplace).

Finally, it is important for employers to review their existing policies on discrimination, harassment and bullying to ensure that they sufficiently address the use of social media in the workplace and if not, implement any necessary changes to those policies. Any regular staff training that employers provide in relation to workplace conduct and behaviours should also be updated to include a component on the appropriate use of social media in the work context.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.