Two issues commonly arise with social media and business. The bullying and harassment that we have already discussed, and the reputational harm that can be experienced by a business at the sharp end of employees’ comments. I know you're all thinking, “Do I really care?” “I can dismiss them if they step out of line, no harm done.” What about when someone tries to make it your fault?

Vicarious liability is a principle whereby an employer is liable for the actions of their employee where those actions occurred in the course of employment and it is often called in to force in personal injury cases. More often now however, we are seeing vicarious liability invoked in harassment cases (Majrowski v Guy’s and St Thomas NHS Trust) and discrimination cases (Jones v Tower Boot Co Ltd). The case law in this area is admittedly confusing and the Tower Boot Co case has only served to enhance the confusion.

The Court of Appeal unhelpfully commented during their judgment that ‘in the course of employment’ should not be given its common law meaning but that it should be interpreted as it would be in everyday speech. This in practical terms gives the Tribunals some flexibility with their interpretation resulting in conflicting decisions.

By way of example, in the case of Chief Constable of the Lincolnshire Police v Stubbs, vicarious liability was established when harassing remarks of a sexual nature were made at a social event in the pub after work with a gathering of colleagues. Seems pretty straightforward. However, there was no vicarious liability found in Sidhu v Aerospace Composite Technology Ltd when racist remarks were made at a family fun day organised by the employer at the weekend.

The difficulty for employers here is abundantly clear, what is going to constitute actions in the course of employment? Unfortunately I don’t have the answer, no one does and as with many areas of law that have gone before, there will be many more cases to come testing the point until we get a clear position, if we ever do.

The cases are, without a doubt, going to continue to cause confusion but it is undeniable that the scope is there for remarks made on social media to be pulled in to the vicarious liability arena. It is also possible that there will be further general health and safety/implied duty of trust and confidence issues arising if employers are failing to protect employees from the actions of others. I wouldn’t suggest that anyone start cancelling work functions or restricting afterhours drinking to venues outside of a 6 mile radius, but the potential for issues in this area is certainly something to keep in mind when considering your company’s professional stance on use of social media.