Was a racially offensive Facebook post shared by an employee “in the course of their employment”?

The Employment Appeal Tribunal (EAT), in the recent case of Forbes v LHR Airport Limited, considered whether a discriminatory Facebook post made by an employee was “in the course of their employment”, and if so, whether the employer could be vicariously liable for the employee’s act.

Under the Equality Act 2010, employers can be held vicariously liable for acts of discrimination, including harassment, committed by employees “in the course of their employment”. This is the case even if the employer had no knowledge of the relevant act(s).

A defence is available to an employer if it can prove that it has taken reasonable steps to prevent the employee from doing the act complained of (including, for example, having in place relevant policies and procedures).

Mr Forbes and Ms Stevens worked at London Heathrow Airport. Ms Stevens posted a racially offensive image on her personal Facebook account, along with a message challenging people to share the image before Facebook removed it. A work colleague who was friends with Ms Stevens on Facebook saw the post and showed it to Mr Forbes.

He complained to his line manager and this was escalated to a formal grievance, which was upheld. Following a disciplinary process, Ms S was given a final written warning.

Mr Forbes was later rostered to work alongside Ms S and when he complained, he was moved to another location without explanation.

Mr Forbes went off sick for a period and subsequently brought claims of harassment, victimisation and discrimination on the grounds of race. To obtain a remedy, Mr Forbes had to rely on the vicarious liability provisions of the Equality Act.

The tribunal dismissed Mr Forbes’ complaints, and he appealed this decision.

The EAT agreed that the post was not “in the course of employment” and therefore LHR Airport could not be vicariously liable for Ms S’ actions.

In reaching that decision, the EAT considered that Ms S was not at work when the image was posted, she had not made reference to her employer or any of their employees and had not used a work computer when sharing the image. Therefore, it was not an act for which the employer could be liable.

The EAT held that whether something is done “in the course of employment” (either in the virtual landscape or the physical work environment) will be a question of fact for the tribunal in each case, having regard to all the circumstances. It was of the view that “a lay person would not consider the sharing of an image on a private non-work related Facebook page, with a list of friends that largely did not include work colleagues, an act done in the course of employment”.

The EAT commented that there may be situations where the sharing of an image on a Facebook page could be found to be an act done in the course of employment, namely “where the Facebook page is solely or principally maintained for the purposes of communicating with work colleagues, or is used for raising work related matters.”

Impact on schools

This case provides useful guidance for employers, but it highlights that each case must be considered on its own facts and circumstances before establishing whether an act is done in the course of employment.

It is a useful reminder for schools of the importance of having adequate policies and procedures in place which provides guidance on posting on social media both inside and outside of work. For more information, please contact Hannah Wilding on 01242 246 485 or at [email protected].