was an employer held to be vicariously liable when an employee posted an offensive image on Facebook?

Posted on July 2019 By aaron & partners llp, solicitors

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In Forbes v LHR Airport Limited, the appellant was a security officer. The appellant’s colleague, Ms S, posted an image of a doll referred to in the case report as a “golliwog” onto her private Facebook page with the caption: “Let’s see how far he can travel before Facebook takes him off”. The picture was shared with Ms S’s Facebook friends, including BW (a colleague of Ms S and the Appellant). BW showed the Facebook image to the appellant, who subsequently raised a formal grievance alleging harassment by Ms S. This was upheld and Ms S received a final written warning. The appellant was then posted to work alongside Ms S. The appellant complained and was moved to another location without any explanation.

The appellant issued claims for harassment, victimisation and discrimination on the grounds of race against LHR Airport Limited.

The Employment Tribunal dismissed the complaint. Although it was found that posting an image on Facebook was capable of giving rise to an offence on racial grounds, by posting the image on her personal Facebook page, Ms S had not done an act in the “course of her employment” (discussed further below). Ms S had not posted the image whilst in work, or on a work computer, it made no reference to her employer and it was shared on a private page in which she was not ‘friends’ with the appellant. This act was not therefore one which the respondent could be liable.

The appellant appealed.

The Employment Appeal Tribunal (EAT) dismissed the appeal. It was held that deciding whether an act done by an employee is “in the course of employment” is a question of fact for the Employment Tribunal to determine having regard to all of the circumstances. In deciding this, it might be relevant to consider whether the impugned act was done at work or outside of work. The EAT acknowledged that this might be more difficult to assess with online activity. It was held that the outcome of the complaint might have been different if BW (the appellant’s colleague) was the target of the harassment complaint, as his subsequent act of showing the appellant the offensive picture on Ms S’s profile was in the workplace and this may well have been “in the course of employment”.

Considerations for Employers

Under the Equality Act 2010, employers are vicariously liable for acts of discrimination, including harassment, which are committed by employees during the course of their employment. This is the case even if the employer had no knowledge of the act(s) of the employee.

The words “in the course of employment” should be given their ordinary meaning. Referring to case law, this has been held to include social gatherings taking place immediately after work or at an organised work event; as well as a drinking session which took place after a Christmas party.

Notwithstanding, it is a defence for an employer if it can show that it took reasonable steps to prevent the employee from doing the act complained of. The employer will need to show that it has taken preventative action. Employers should ensure that they have detailed policies in place relating to, for example, anti-harassment and bullying and equal opportunities.

Further, employers should take reasonable steps to ensure that such policies are communicated to all staff members. The EHRC’s Code of Practice suggests that this could include: email bulletins; placing the policies on the intranet; including the policies in induction packs; referring to the policies at team meetings, on office notice boards and in newsletters; and having an easily accessible employee handbook for staff members- you could require employees to sign a statement to show that they have read and understand the contents of the employee handbook upon commencing employment. Further, you could carry out regular training to ensure that all employees are aware of the policies and fully understand them.

Please don't hesitate to get in contact if you require any advice about preventative measures that your organisation can take and if you require a free review of the policies that you currently have in place. Please also contact Claire Brook at 01244 405575 or claire.brook@aaronandpartners.com for details of our specialist and tailored in-house training sessions.