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Facebook comments and discrimination claims

The Employment Appeals Tribunal (EAT), has decided that comments made about an employee on Facebook can form part of a “continuing act” in discrimination claims.

The decision is important because Facebook walls, Twitter pages and other similar social media sites invite discussions that can remain ongoing for a much longer period than other verbal or written comments. This increases the risk that a Facebook wall or Twitter post will form a continuing act in a discrimination claim and, although the Tribunal did not make a ruling on this, such posts may operate to extend the deadline by which an employee has to bring a discrimination claim.

Additionally, this serves as another warning to employers that social media posts made by its employees can lead to Tribunal Claims. You might like to contact us to discuss this further or to discuss how a social media policy may assist you with dealing with such matters.

Background

The usual time limit for bringing a claim for discrimination is three months from the date of the discriminatory act.

However, in some cases a Claimant will rely on more than one discriminatory act and will say that there is a course of discriminatory conduct over a period of time (ie there is a continuing act). Where there is a continuing act, then the three month time limit will start when the discriminatory conduct ends.

In order to show that there is a continuing act, the employer has to be responsible for “an ongoing situation or a continuing state of affairs” in which the discrimination occurred.

Facts

The Claimant, Mr Novak, is American and has a disability. He was a manager at Phones 4U Ltd (Phones 4U). Mr Novak fell down a flight of stairs at work in February 2010 and has been absent from work since.

Some colleagues made fun of Mr Novak’s accident on Facebook following which he brought claims for disability and race discrimination (among other claims).

The first Facebook comments were made by several Phones 4U employees. The comments concerned Mr Novak’s accident at work and contained a number of comments to which Mr Novak took exception. A number of people registered their approval of comments made on Facebook by registering a “thumbs-up” sign.

Additional Facebook entries were made between 26 and 28 July 2010. This again related to Mr Novak’s accident at work and a subsequent grievance raised by him.

Mr Novak argued that the second set of comments were a continuing act (if he failed to show this then his complaint concerning the first Facebook comments would not have been brought in time).

At a pre-hearing review (a hearing which was held to decide whether Mr Novak’s claims were in time), the Employment Tribunal judge decided that the second set of Facebook comments was not a continuing act linked to the first set of Facebook comments – so parts of his discrimination claim were deemed to be out of time. Mr Novak appealed against this decision.

The EAT agreed with Mr Novak’s appeal, saying that the two sets of Facebook comments were capable of being a continuing act and therefore the Claimant’s complaint in relation to the first set of Facebook comments was in time.

Decision

The EAT decided that the postings involved the same individuals who Mr Novak worked with. The two sets of comments both mentioned Mr Novak’s accident. Accordingly, the EAT decided that there was clearly a connection between the comments in terms of the individuals involved, subject matter and timing.

The EAT also raised an interesting question as to whether an act of discrimination continues throughout the period when a Facebook entry remains on the website. Unfortunately this question was not resolved by the EAT but with the increasing number of social media cases working their way through the Tribunal system, there will no doubt be developments on this front.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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