The hugely popular use of social media (a third of the world’s population use Facebook for example) means the risk posed by employees posting discriminatory images or statements on social media is of real concern for employers. This is compounded by the fact that the line between work and personal lives is becoming more and more blurred as a result of social media. The following case demonstrates this point.
In the case of Forbes v LHR Airport (LHR) Ltd, the Employment Appeal Tribunal (EAT) has ruled that an airport was not vicariously liable for an offensive Facebook post one of its employees shared on their private page. The colleague claimed to have been a victim of harassment and discrimination after raising concerns about the post.
The EAT unanimously dismissed an appeal brought by security officer Mr O Forbes, who said he suffered harassment, victimisation and discrimination.
It found his co-worker’s act of posting a “golliwog” image on her private Facebook page did not take place “in the course of her employment”, and her employer, London Heathrow Airport, could not be held liable for her actions.
The EAT did admit, however, that the image was “capable of giving rise to offence on racial grounds”.
Mr Forbes and Ms Stevens were security officers at LHR.
Ms Stevens had a Facebook account and she shared an image on her private Facebook page of a “golliwog” (a racial caricature) accompanied by the message ‘Let’s see how far he can travel before Facebook takes him off’.
The image was shared with people who were on her list of Facebook friends. One of those friends was a work colleague, BW. Mr Forbes was not on that list and would not have been able to see the image through his own account. BW showed the image on Ms Stevens’ Facebook page to Mr Forbes on 6 November 2016 and he was shocked and appalled that she had posted it. He complained to his line manager that racist images were being circulated in the workplace. His grievance was upheld and Ms Stevens, despite apologising when the offensive nature of the image was explained to her, received a final written warning for breaching LHR’s Dignity at Work policy.
On 4 December, Mr Forbes was posted to work alongside Ms Stevens. He raised a concern with his union representative that he was being required to work with a colleague despite his grievance against her having been upheld.
He was then moved to work at another location, which upset Mr Forbes as he felt that he was being victimised and discriminated against because of the fact he had carried out a protected act, namely complaining about the image on Ms Stevens’ Facebook page.
He was signed off sick the next day and did not return to work until 27 April 2017.
On 14 March, shortly before he returned, he issued proceedings before the Reading Employment Tribunal (ET) alleging harassment, victimisation and discrimination. To obtain a remedy, Mr Forbes had to rely on the vicarious liability provisions of the Equality Act 2018, s. 109. The tribunal dismissed his complaints on 18 January 2018.
While the tribunal found Ms Stevens shared an image that was capable of giving offence on “racial origin grounds”, she was found not to have done so in the course of her employment so LHA was not vicariously liable for her actions. as she was not in work “at the time that the action [posting] was taken”.
The tribunal added the “sharing of the image made no reference at all to the respondent [LHA] or any of the respondent’s employees” and the equipment that was used for sharing the image did not belong to LHA.
Mr Forbes appealed the ruling in February 2019. The EAT unanimously upheld the original ruling, citing the original tribunal did not err in law in concluding that Ms Stevens’ act of posting the image on her private Facebook account to her friends was not done in the course of her employment.
But the EAT admitted the outcome of the complaint “might have been different” if BW, the work colleague who originally shown Mr Forbes the image, had been the target of the harassment complaint, as “his subsequent act of showing the offensive image to [Mr Forbes] was done in the workplace and might be said to have been done ‘in the course of employment’.”
What does this mean for employers?
The decision does not mean that employers cannot be liable for their employees’ social media posts. Whether or not an act is “in the course of employment” will depend entirely on the facts of each case - the EAT was reluctant to provide any prescriptive guidance, which is understandable. For example, had Ms Stevens shared the image on Facebook using her work computer on her lunch break in the office, the result may have been different.
Employers can mitigate against this risk by ensuring that they have robust policies and procedures in place to govern employees’ use of social media and IT. Such policies must make it clear that employees must not make or engage in any activity which may damage the reputation or business of their employer, or post or condone content that is offensive, discriminatory or abusive, irrespective of whether in or outside of work or on a public or private social media account. Policies should be supported by regular training to staff about workplace behaviour, to highlight the risk and issues to staff. In this case, LHR was right to deal with the matter under its disciplinary procedure.
Contact the Alcumus PSM HR team for advice on any of the above by emailing [email protected] or call us on 0330 057 1557.
Alcumus PSM (People & Safety Management) specialises in human resources (HR) and health and safety (H&S) consulting for small and medium-sized enterprises.
Written by Anil Champaneri, Senior HR Consultant