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EAT ruling on social media and employer liability

  • United Kingdom
  • Employment law

10-07-2019

In Forbes v LHR Airport Limited (LHR), the EAT has unanimously held that the posting of a discriminatory image on a personal Facebook page, which caused offence to a work colleague, was not done “in the course of employment”. The employer could therefore not be liable for this discriminatory act by the employee pursuant to the Equality Act 2010 (EqA).

Background

The Claimant worked for LHR as a security officer. Ms S, a colleague of the Claimant, shared an image of a golliwog on her personal Facebook page, outside of work hours, with the message “Let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s Facebook friends, one of whom was a work colleague who showed the posted image to the Claimant.

The Claimant raised a grievance with LHR, complaining that a racist image was being circulated in the workplace. Ms. S was placed under disciplinary investigation and received a final written warning for her conduct; specifically her breach of LHR’s dignity at work policy. Ms. S appeared “contrite” when the offensive nature of the image was explained to her.

Almost a month after the incident, the Claimant was rostered to work alongside Ms. S. The Claimant raised a concern with his union representative. As a result of this, the Claimant was moved to work at a different location, without any explanation. The following day the Claimant was signed off sick and issued tribunal proceedings alleging harassment, victimisation and discrimination shortly before returning to work.

EqA provides (section 109) that an employer may be liable for the discriminatory acts of an employee. However, liability turns initially upon whether the offending acts took place in the course of employment. In dismissing the claims, the ET relied upon long-established principles of the case of Jones v Tower Boot Co Ltd to find that, here, there was insufficient connection between Ms S’s actions and her employment for the posting and private sharing of the image to be considered as carried out in the course of her employment.The Claimant appealed this decision.

EAT Judgment

The EAT dismissed the Claimant’s appeal. It held that the words “in the course of employment” must be interpreted in their ordinary and natural sense, as they would be by a lay person and that such interpretation would necessarily depend upon the individual facts of any given case and the extent of nexus between the actions and work. Here, the EAT agreed with the tribunal’s finding that Ms. S did not post the image whilst at work, used her personal computer, made no reference to her place of work and the image was posted to a group of friends that did not include the Claimant. Furthermore, the EAT also held that the fact disciplinary action taken by an employer does not automatically lead to a conclusion that the conduct took place during the course of employment. Whilst the EAT’s decision did not consider whether Ms. S’s conduct was discriminatory, nor whether the actions of the colleague who showed the offending image to the Claimant was itself discriminatory, the EAT did state that it was reasonable for the tribunal to take into account Ms.S’s apology when weighing up the effects of her conduct for the purposes of a harassment claim under section.26(4) EqA.

Comment

This case provides helpful supplemental insight for employers in terms of when they can be found to be vicariously liable for an employee’s conduct, particularly when using social media. However, the EAT made it clear that there is no clear rule as to when conduct in the “virtual landscape” will be considered to be in the course of employment. The individual facts and circumstances of each case will need to be considered by the tribunal.

The degree of connection with the workplace will also be key. For conduct to have taken place in the course of employment outside of work hours, there has to be a sufficient link to the workplace, which can be difficult to prove. If a social media account is used for work purposes, then the Tribunal may consider there to be a sufficient connection to interpret the conduct as being done “during the course of employment”.

Jason French-Williams of Eversheds-Sutherland appeared before the EAT on behalf of LHR.

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