21 Jul 2026
Adam Morris, solicitor at HCR Law, lays out some rules and scenarios where this can cause issues, and how employers should deal with it.
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The consequences of the misuse of social media can be significant for practices and employees alike. While good news travels quickly, bad news often travels at the speed of light. Likewise, a post on social media can do harm, on a global scale, in the blink of an eye.
So, what happens if an employee uploads a discriminatory post on to social media – especially where the author can be identified as an employee of a particular practice?
Consider this: on their personal Facebook account, an employee posts inappropriate comments about the sex of new recruits in businesses in recent months, highlighting the example of a particular new employee in the practice.
The offending employee’s Facebook profile includes detail that highlights that they work at the practice. The post receives several comments and re-posts. You become aware of this when you receive a report from the manager of the newly recruited employee mentioned in the post who confirms that they have been shown the post. They are upset and believe that the post is humiliating and degrading. Shortly after this, you are contacted by a regular client who complains about the post and says that they want to take their care needs elsewhere.
As the employer, you think that this is a disciplinary matter because one member of staff publicised an inappropriate comment about another.
However, your employee says that the comment was made on their personal social media account, intended only for their Facebook friends. They did not express their views in the workplace and have not treated the newly recruited employee or any others who share their sex any differently. They feel that the practice cannot penalise them for expressing their own views outside of work.
The newly recruited employee says that what has happened amounts to harassment and they now find it difficult to continue working in the practice. They have not taken any further action at this stage, but you are aware that they feel that you, as the employer, are liable for the actions of your employee, and should compensate them accordingly. While an employer cannot unreasonably interfere with an employee’s right to express their beliefs in public or outside of work, interference may be allowed if these views could damage the employer’s reputation with its customers or clients, or if it is conduct that the employer has a legal obligation to protect.
The Equality Act 2010 obliges employers to protect their employees from discrimination and harassment. Nine protected characteristics are included in the Equality Act; sex is one of these.
Disciplinary action, at least in the form of an investigation process, is a reasonable step for an employer to take if an employee is reported to have used discriminatory language in a social media post, regardless of whether this was a personal account.
Recent case law requires employers look at the context of what was said, evidence of any impact on the business and whether any real risk of discrimination or harassment to one of its employees exists. In our scenario, the employee would be at a real risk of disciplinary action which may well lead to a finding of gross misconduct.
However, the practice must follow a fair and thorough disciplinary process in which the employee is given copies of any evidence relied upon and is given the opportunity to put forward their own version of events or mitigation.
Failure to do this may give the employee the right to claim that any dismissal for this social media post was procedurally unfair.
Employers may be liable for the actions of their employees if sufficient connection is found between the wrongful act and the individual’s employment. This is known as “vicarious liability”.
Here, an employer may be liable to the person suffering discrimination or harassment if the employee responsible for this conduct acted in the course of their employment. Similarly, if one employee is defamed by another during the course of employment, the employer may be vicariously liable to the defamed employee.
A discriminatory act does not have to have taken place in an employer’s premises for them to be vicariously liable; therefore, even if an offending comment is made on a personal social media account, an employer may be vicariously liable for this if a reasonable person would connect the act on social media with the employee’s employment. The fact that an employer takes disciplinary action against an employee because a discriminatory social media post is in contravention of its social media policy or damaging to the reputation of its business does not then imply that the employee acted in the course of their employment – as was found in Forbes versus LHR Airport Ltd (2019). Something more must be found to make an employer vicariously liable.
It may be a defence if an employer has taken all reasonable steps to prevent the discriminatory act – such as having clear anti-discrimination and social media policies, as well as giving training around the topics surrounding discrimination; however, proving this may be a high bar for an employer.
Although the comments of the employee in the scenario relate to another employee, if the employee’s association with the practice adversely affects its business and lowers its reputation in most peoples’ minds, it may have a claim of defamation against the employee.
The practice would have to show that the employee’s statement was published to other people via the social media app, and that it had caused or was likely to cause serious financial loss to the practice. Depending upon the circumstances in which the publication was made, the practice may also have a claim for malicious falsehood if it can also be shown that the employee’s statement was objectively false, referenced the practice, was published with an improper motive knowing it was false or with a reckless disregard for the truth, and caused the practice to suffer a loss that is capable of quantification.
However, even if an employee has defamed the practice on social media, it may find it better not to draw any more attention to the issue.
Alternatively, it may consider using social media itself to rebut the defamatory comments and to actively manage its own reputation.
Social media, like it or not, is here to stay. While it has created new opportunities for individuals, businesses and organisations to connect, so it has opened up new avenues for legally expensive mischief.