Facebook is a social media forum which has over a billion members; therefore the odds of employees nothaving an account are slim. Hence over the last couple of years we have seen a rise in allegations of discrimination arising from comments made on Facebook (as well as other social media forums).
The general time limit for bringing a discrimination complaint to the employment tribunal is three months from the date of the last discriminatory act. However for the purposes of discrimination when do social media comments amount to being a continuing act?
The EAT recently looked at this as a preliminary issue in Novak –v- Phones 4 U Limited.
Background
Mr Novak, an American manager at Phones 4 U (“the Company”), sustained injuries when he fell down some stairs at work on 26 February 2010. His injuries rendered him disabled. Following this unfortunate accident, a group of Mr Novak’s colleagues used Facebook to mock the accident. Mr Novak raised a grievance with the Company.
Mr Novak later brought claims against the Company for disability discrimination, race discrimination, harassment and victimisation. Part of his claim related to posts made by colleagues on 31 March – 21 May 2010 (“the First Posts”) and 26 & 28 July 2010 (“the Second Posts”).
The decision
Mr Novak succeeded in arguing that all the posts amounted to being continuing acts, this was on the basis that, although the First Posts and Second Posts were 7 weeks apart, they concerned the same subject matter, people and time therefore creating a continuing act.
Interestingly the tribunal held that each ‘like’ (the thumb up signal for those of you not familiar with Facebook) amounted to being a single act; therefore each time a comment was made the act of discrimination (for the purpose of calculating time limits) was continuing.
Conclusion
This case serves as a warning to employers that not only could they be held vicariously liable for discriminatory comments made by employees on social media forums but a series of comments (including ‘likes’) relating to the same subject matter, people and time are likely to amount to acontinuing act, extending the time limit for employee’s to bring a claim in the employment tribunal.
Therefore if you are an employer, ensure you:
1. have a clear social media policy in place;
2. provide management with the relevant training and
3. make employees aware of the policy and consequences of breach.
If you need advice in dealing with a social media issue please contact a member of our team on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free initial consultation.
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