The #metoo movement demonstrates how the power of social media can raise awareness and cause important cultural changes. However, with its reach and ease of use, this technology is also being misused, giving rise to an increase in the risk of employees either being subjected to, or perpetrating, unwanted behaviour, including sexual harassment. In particular, women are increasingly receiving unwanted advances and comments of a sexual nature through social media, whether as an employee or as a customer. Employers can play an important role in policing such behaviours and promoting the right culture both in the workplace and wider society. However, what are the legal obligations for a business to address the misuse of social media? Legislation is often behind the technological curve and there are increasing calls for social media to be better regulated. Current legislation is piecemeal but still effective, and the Equality Act 2010 remains the key protection. It states that sexual harassment in the workplace arises where an individual engages in unwanted conduct of a sexual nature with a colleague. Unwanted conduct need not be repetitive, nor does it require the victim to make the perpetrator aware that the conduct is unwanted. However, the conduct must have the purpose or effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Three factors are considered to substantiate that the conduct has had that effect. These include a subjective ‘victim’s perception’ test, all the other circumstances and an objective judgement that it is ‘reasonable’ for the conduct to have had that effect. The employer becomes liable because, under the Equality Act, ‘anything done’ by a person ‘in the course of employment’ is treated as also done by their employer, regardless of whether the employer is aware of the conduct. With the blurring of lines between private and working lives, it can be unclear whether acts are carried out in the course of employment. An example could be where employees are encouraged to use social media to promote themselves in a business context, but do so outside of work.
A more difficult area is where the harassment is by a third party; for example, a customer or supplier. While the specific third-party harassment rules were repealed in 2013, employers can still be liable if their inaction creates a hostile environment or perpetuates a situation. Inaction could also result in a constructive dismissal claim or a negligence claim where demonstrable personal injury is caused. There is also provision under the Equality Act that makes it unlawful for an employer to instruct, cause, induce or aid their employee (or another company) to harass another person, or to attempt to do so. Proceedings under this provision may be brought by a victim, or by the Equality and Human Rights Commission. Employers can guard against liability by taking ‘reasonable steps’ to prevent unwanted conduct. However, these should go further than just meeting minimum standards and box-ticking. Steps include implementing and enforcing anti-harassment and equal opportunities policies, providing mandatory training and setting out policies on misuse of company software. It is then vital that any enforcement action taken is consistent, sincere and effective. In the current climate, failure to do so could be perceived as fostering a culture of unacceptable conduct and lead to severe repercussions for the company. Not only could this result in legal sanctions, perhaps more importantly, bad publicity – with social media ironically being a media channel – could have an indeterminate negative impact on a business’s bottom line. Social media is both multi-jurisdictional and cross-border. Businesses that operate globally could fall foul of legislation in multiple countries and so need to understand their risks both in the UK and overseas. James Simpson is a partner and head of employment at Blaser Mills, and a member of IR Global