Are employers liable for employees’ Facebook posts
In the case of Forbes v LHR Airport Limited, the Employment Appeal Tribunal were tasked with deciding whether an employer could avoid liability for acts of discrimination committed by an employee if the act complained of took place outside of work.
On one occasion at work the claimant was shown by his colleague, BW, an image that had been posted on Facebook by another colleague, S. The image was a picture of a golliwog, which was accompanied by the caption, ‘let’s see how far he can travel before Facebook takes him off’. It had originated on S’s private Facebook page and had then been shared with a number of people, including BW, but not the claimant.
The claimant was appalled by the image and raised a formal grievance against S, complaining that racist images were being circulated in the workplace. The grievance was upheld and, following a disciplinary procedure, S was issued a final written warning.
Following this, the claimant was rostered to work alongside S and raised concerns about this. He was then moved to another location without any explanation. A brief time later the claimant brought claims of harassment, victimisation and discrimination on the grounds of race to an employment tribunal (ET). In doing so, he claimed that the respondent was vicariously liable for the behaviour of S.
However, the ET saw fit to dismiss his claim. They ruled that although the sharing of the image was capable of giving rise to the offence on racial grounds, the post had been done on S’s private Facebook page and had therefore not taken place ‘during the course of her employment’, so the organisation could not be vicariously liable.
The ET went on to explain that, regardless of this, the organisation had taken all reasonable steps to prevent the employee suffering discrimination. They had policies that made it clear this behaviour was unacceptable, had upheld the claimant’s grievance, subjected S to a disciplinary procedure and ultimately issued her a final written warning.
The claimant appealed the vicarious liability point to the Employment Appeal Tribunal (EAT), and also disputed that the organisation had taken reasonable steps to prevent discrimination. However, the EAT dismissed this appeal, agreeing with reasoning of the ET.
They explained that when assessing whether an act occurred in the ‘course of employment’, tribunals need to examine whether the act was carried out at work or outside of work and, if outside work, whether there was a sufficiently close connection with work such e.g. an office Christmas party. However, the EAT commented that such a distinction is far less easy to apply when dealing with the virtual world.
In summation the EAT stressed that S had posted the image on a private Facebook account and had not been at work, or used the respondent’s equipment to do so. They also noted that her friendship group online was largely made up of non-colleagues and the image had not made reference to the organisation or any of its employees.