Is an employer liable for offensive and/or potentially discriminatory material or comments posted on its intranet bulletin board?
Yes, an employer could potentially be liable for offensive and/or discriminatory material on its intranet board. Employers are under a duty to provide a safe working environment that is free from bullying, harassment and discrimination. Inappropriate wording posted on intranet bulletin boards by employees for their colleagues to read may amount to bullying or harassment. Where the comments contain an element of discrimination because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation, the employer may become vicariously liable for those acts of discrimination, even if the posts were made without its authorisation or knowledge.
One of the best means of defence against such liability is the "reasonable steps" defence, which requires the employer to show that it took all reasonable steps to prevent employees from committing the discriminatory acts in question. The steps must have been taken before the discriminatory acts occurred. A suitably worded computer-use policy and/or equal opportunities and dignity at work policy that is properly communicated and implemented in the workplace can provide significant protection from the risk of successful unlawful discrimination or harassment claims. However, simply having a policy in place will not be sufficient to rely on the statutory defence. Employment tribunals will look to see what positive steps the employer has taken to promulgate and implement the policy and to provide employees with appropriate training.
Even where no element of unlawful discrimination exists as regards the offensive material posted, an employee could claim constructive unfair dismissal if the employer fails to address the problem and the employee resigns as a result. There is an implied term in every contract of employment that the employer will provide a working environment that is reasonably suitable for the performance by an employee of his or her contractual duties. Allowing hostile or offensive intranet bulletin board posts to go unchecked may breach this implied term.