Social Media – Harassment and Employer’s Liability
Friday 26th July 2019
In Forbes v LHR Airport Limited the Employment Appeal Tribunal considered if posting an offensive image on Facebook was done in the course of employment.
Facts
Mr Forbes was employed as a security officer. A colleague of his, Ms Stevens, posted an offensive image of a golliwog on Facebook alongside a caption “Let’s see how far he can travel before Facebook takes him off”. This image was shared only with Ms Stevens’ Facebook friends. Mr Forbes was not Facebook friends with Ms Stevens, but was shown the post by another colleague.
Mr Forbes raised a grievance which was upheld and Ms Stevens was disciplined, receiving a final written warning.
When rota’ed to work with Ms Stevens, Mr Forbes raised issue with this and was moved to work in another location without further explanation. He then brought claims of harassment, victimisation and discrimination against LHR.
Law
Employers can be held vicariously liable for the actions of their employees which breach the Equality Act 2010 (including harassment) provided such actions were carried out in the course of that person’s employment.
Decision and Comment
On first hearing in the Employment Tribunal, Mr Forbes’ complaints were dismissed. It was held that Ms Stevens’ act of posting the image on her personal Facebook page was not one done in the course of her employment and therefore was not an act for which LHR could be liable for. LHR had also taken all reasonable steps to prevent discriminatory acts.
In upholding the first instance decision and finding there was no liability for LHR on this occasion, the EAT made clear that assessing if actions are in the course of employment or not, it will be a question of fact having regard to all the circumstances.
No specific rules regarding social media were provided by the EAT, but it made clear that relevant factors included whether the post was in or out of work and if there was a sufficient connection between work and the conduct.
Whist each case of this nature will be highly fact specific, a clear disciplinary policy and an unambiguous policy on the use of social media will go a long way to help employers address these issues when they first arise before recourse from the Tribunal is sought.
