Was a racially offensive image posted on Facebook by an employee (in their own time) something that was done during the "course of employment"?

Social media and its use by employees continues to generate more than its fair share of employment tribunal claims. The issue of whether an employee’s act of posting inappropriate images is something that has been done during the “course of employment” can be a difficult question to determine.

The Employment Appeal Tribunal’s (EAT) recent decision in the case of Forbes v LHR Airport Ltd may help to provide answers to these questions.

Facts of the case

In Forbes v LHR Airport Ltd, the EAT upheld a tribunal’s earlier finding that LHR Airport (The Respondent) was not liable for harassment on the basis of race under sections 26 and 109 of the Equality Act 2010.

The Claimant worked as a security officer for LHR Airport Ltd. Ms Stevens, one of his work colleagues shared an inappropriate image on her personal Facebook account whilst she was not at work. The image was shared with her Facebook friends, which included a colleague (“BW”) but not the Claimant himself. BW subsequently showed the image to the Claimant whilst they were both at work. The Claimant complained to his line manager. This escalated quickly into a formal grievance. Following an investigation,  the grievance was upheld and Ms Stevens was given a final written warning. During the investigation, the offensive nature of the image was explained to Ms Stevens. She was contrite and offered an apology.

The Claimant was later posted to work alongside Ms Stevens. The Claimant objected to having to do this. This resulted in the Claimant being moved to another location (without any explanation). The Claimant subsequently went off sick before eventually bringing a claim for harassment (amongst other things) against the Respondent.

The Employment Tribunal

At the initial hearing the employment tribunal dismissed the Claimant’s harassment claim. It found that Ms Steven’s actions in sharing the image on Facebook had not been done “in the course of employment”, which is an essential element of employer liability under section 109 of the Equality Act 2010. The tribunal found that she hadn’t been at work at the time of posting the image and she also did not mention any work colleagues or the Respondent in the body of the Facebook post itself.

The tribunal also concluded that the sharing of the image on social media did not amount to harassment under section 26 of the Equality Act 2010. There was an acceptance that the image would have caused an offence to the claimant, however Ms Steven’s act wasn’t intentional and taking into account her apology, the tribunal found that it wasn’t reasonable for her conduct to have had the  effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

The Claimant appealed.

The Appeal

The Claimant appealed and invited the EAT to overturn the employment tribunal’s decision for the following reasons:

  • the claimant argued that the posting of the image on Facebook was “in the course of employment” as she was one of his work colleagues;  and
  • that posting the image amounted to harassment under the Equality Act 2010 as it created a humiliating and offensive environment for the claimant to work in.

The EAT rejected the appeal.

The EAT noted that whether something is done “in the course of employment” is a question of fact and those words should be interpreted in a way that a  lay person would understand them. It followed that such a person would not consider that the sharing of an image on a private non-work related Facebook page, was an act that could be said to have been done in the course of that individual’s employment. The fact that BW, who was friends with Ms Stevens on Facebook, had shown  the image to the Claimant was not relevant to the determination of this issue.

The EAT accepted that there may be many circumstances in which sharing an image on Facebook could be found to be done in the course of employment, such as where a Facebook page is solely or primarily used for work related purposes. The EAT also noted that the fact that an employer may choose to take action in respect of a social media post that is created or shared outside of the work environment does not necessarily have any relevance to the assessment of whether the act in so doing is something that had been done during the course of an individual’s employment.

Given this conclusion the question on whether Ms Steven’s conduct amounted to harassment did not need to be considered. Nonetheless, the EAT made it clear that it would not have found in favour of the fact that the image had been shared privately, that it was not something Ms Stevens had done at work, that the Claimant was not one of Ms Stevens’s Facebook friends and that Ms Stevens had offered a timely and apparently sincere apology .

Commentary & guidance

This is an interesting case in terms of the issues that arise in the social media context. The question as to whether personal social media posts will be deemed to be done in the course of an individual’s employment will depend on the relevant context and circumstances.

As the EAT observed, it may not be easy to say whether a person is doing something while at work where some of that person’s work activity is conducted online at home. Some of the factors which the EAT identified in this case may assist in determining future cases involving private social media posts. For example where there is very limited crossover between an individual’s private social media friends and/or contacts then that may make it less likely that the offending posts or content that are likely to be found to constitute something that has been done in the course of an individual’s employment. It does appear however that there needs to be a tangible connection between the social media account and the employer, or where the social media account is private the posts must be likely to be seen and/or viewed by a number of work colleagues.

Employers should consider whether their own disciplinary rules and/or social media policies need to be updated. Clear rules stating that any form of harassment need to be promulgated and adequate employee training should also be provided.

Please contact Angela Gorton by telephone on 013 280 2026 or alternatively by email at angela.gorton@luptonfawcett.law if you would like to discuss any of the issues raised in this blog or if you require help and/or assistance in relation to the drafting and/or content of your own organisations internal rules, policies and procedures.

Many thanks to Ben Wheeler (Work Experience Student) for his invaluable help and assistance in producing this article.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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