The EAT has held, in Novak v Phones 4U Ltd that two sets of Facebook postings about a fellow employee on long-term sick leave following an accident at work were part of a continuing act of discrimination, meaning that the employee could bring a claim about both incidents, even though more than three months had passed since the first incident.

The test for a "continuing act" is whether the employer is responsible for an "an on-going situation or a continuing state of affairs" in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents. The wall posts amounted to "an on-going situation" as they were linked in terms of: (a) their subject matter - all of the posts related to the employee on sick leave and made fun of that employee's accident; and (b) were linked in time as they spanned a period of 17 weeks. The EAT disregarded the fact that there had been an interruption of seven weeks between the two sets of postings – this gap was not sufficient to break continuity.

The judge posed an interesting question as to whether an act of discrimination would continue for as long as the original set of posts remained displayed on Facebook, even without any further posts. This was left unanswered but employers would be wise to proceed with caution where such social media activity is concerned.

Comment:  This case highlights the scope for comments made on social media to have a durability that comments made in the "real" world do not. In general, work banter during, for example, a tea break has an immediacy which means that those participating will tend not to return to the original joke long after the event, whereas the nature of Facebook walls and other social media sites is such that they invite continual comment, dialogue and "re-tweeting".

Employers should ensure that they have appropriate social media and equal opportunities policies in place but should also consider training staff on the impact of the misuse of social media and its consequences, in order to be able to demonstrate that they have taken reasonable steps to prevent discrimination occurring, which may help an employer to avoid vicarious liability for acts of its employees on social media. If an employer becomes aware of a potentially offensive comment about another employee it should take action to ensure that the post is removed.

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