In the recent case of Forbes v LHR Airport Limited, the Employment Tribunal considered whether the posting of an offensive image on Facebook was carried out “in the course of employment” in the context of a discrimination case.
Facts of the Case
The Claimant was employed as a security officer. A colleague, Ms S, posted an image of a golliwog on her private Facebook page with the caption “let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s list of Facebook friends including another colleague, BW. BW showed the Facebook post to the Claimant. The Claimant raised a formal grievance which was upheld. Ms S apologised and received a final written warning. The Claimant was then rostered to work alongside Ms S. When he complained, the Claimant was moved to another location.
The Claimant brought claims of harassment, victimisation and discrimination on the grounds of race. The Tribunal dismissed the claims on the basis that Ms S had not acted during the course of her employment. She had not posted the image whilst at work or on a work computer. It was shared amongst a private group which did not include the Claimant and did not refer to the employer.
The Claimant appealed the Tribunal’s decision. The Employment Appeal Tribunal held that the Equality Act 2010 renders an employer liable for acts of an employee done “during the course of employment”. Whether an act is in the course of employment is a question of fact for the Tribunal having regard to all the circumstances and a factor to take into account will be whether the act was done at work or outside of work. The EAT acknowledged that it might not be easy to determine whether something was done at work when it is done online. In this case, the EAT found that the Tribunal did not err in law by concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment. It was a private Facebook account and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, who took the subsequent step of showing the image to the Claimant at work.
The EAT said that the outcome may have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Claimant was done in the workplace and might be said to have been done “in the course of employment”.
This case is a reminder to employers that they can be liable for discriminatory acts carried out by a person in the course of their employment and that it does not matter whether that thing is done with the employer’s knowledge or approval as set out in section 109 of the Equality Act 2010.
A defence to this is that the employer has taken reasonable steps to prevent the treatment. Tribunals should take a two-stage approach, looking first at what steps the employer took and then considering whether there were other reasonable steps that it could have taken. In considering what steps are reasonable in the circumstances, it is legitimate to consider the effect they were likely to have, and not whether they have actually been effective.
In summary, reasonable steps that an employer should implement will usually include:
- Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate.
- Making all employees aware of the policies and their implications.
- Training managers and supervisors in equal opportunities and harassment issues.
- Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.
If you require any advice on any of the points mentioned in this blog, get in touch with Farleys’ employment law team on 0845 287 0939 or send your enquiry online.