193: EAT considers whether posting offensive image on Facebook was in the course of employment

Under the Equality Act 2010, an employer may be vicariously liable for racial harassment by an employee where this is carried out in the course of employment. In Forbes v LHR Airport Ltd, the EAT considered whether an employer was vicariously liable for harassment where an employee had posted a racially offensive image on Facebook and shared it with her colleague.

Mr Forbes worked at Heathrow Airport. One of his colleagues, Ms Stevens, posted an image of a golliwog on her personal Facebook page with the caption ‘Let’s see how far he can travel before Facebook takes him off.’ This image was shared with her Facebook friends, including another colleague, who then showed it to Mr Forbes. Mr Forbes raised a formal grievance, which was upheld. Ms Stevens apologised and was given a final written warning. Mr Forbes was subsequently rostered to work next to Ms Stevens but was then moved to a different location. Amongst other claims, Mr Forbes brought a claim of racial harassment, arguing that his employer was vicariously liable for Ms Stevens’ actions in posting the offensive image.

The Employment Tribunal ruled that Ms Stevens’ actions were not carried out in the course of employment since the image was not work-related, was posted outside work on a personal device, on a non-work Face book page, and was only shared with a private group of friends, not including Mr Forbes. The employer could not therefore be vicariously liable for her actions. The Tribunal also ruled that, in any event, the sharing of the image did not constitute harassment since Ms Stevens had not meant to cause offence to Mr Forbes and had apologised.

Agreeing with the Tribunal’s reasoning, the EAT confirmed that the employer was not vicariously liable. The fact that Ms Stevens’ colleague had shown the image to Mr Forbes was not relevant to whether her act of sharing it on Facebook was done in the course of employment. The Tribunal had been correct to focus on the time at which Ms Stevens shared the image because that was the act of alleged harassment that the Tribunal was required to consider. The EAT also noted that the fact that an employer had a policy allowing it to take disciplinary action for conduct outside work did not mean that the conduct was necessarily carried out in the course of employment.

Deciding whether an employee’s act is carried out in the course of employment can be difficult, especially where social media is involved and the line between personal and work-related acts is blurred. However, the EAT confirmed that in many instances, sharing an image on Face book could be found to have been in the course of employment, for example, where Facebook is used solely or mainly for work purposes, or where friends include a number of colleagues. The EAT noted that it was not possible or desirable to lay down any set guidance as to when employers will be liable for this type of conduct, particularly as the use of social media platforms continues to increase and evolve. A Tribunal will always need to consider all the facts and circumstances of each case.