Was sharing a discriminatory Facebook post carried out “in the course of employment”?
No, held the Employment Appeal Tribunal (EAT) in Forbes v LHR Airport Limited, in a decision which will provide some comfort to employers who are concerned about their employees’ social media activity.
In this case, Mr Forbes’ colleague, Ms Stevens, had shared an image of a golligwog on Facebook with the caption “Let’s see how far he can travel before Facebook takes him off”.
A third colleague saw the image and showed it to Mr Forbes who complained to his line manager that racist images were being circulated in the workplace.
Ms Stevens was disciplined and received a final written warning for the conduct. However, Mr Forbes was later posted to work alongside Ms Stevens and he complained about this, resulting in him being moved to another location without any explanation.
Mr Forbes issued proceedings in the Employment Tribunal (ET) alleging harassment, victimisation and discrimination.
The Equality Act renders an employer liable for discriminatory acts carried out by their employees in the “course of employment”. Therefore, one of the key questions for the ET was whether Ms Stevens had shared the image in the course of her employment.
The ET accepted that the image was capable of giving rise to offence on racial grounds but found that posting it was not carried out in the course of her employment. She was not in work at the time the post was made, nor did she mention LHR or any of her colleagues. She shared it on her own equipment and did so to a private list of friends, one of whom happened to be the colleague that showed Mr Forbes the image.
On appeal, the EAT agreed with the ET’s finding in this respect, although it noted that the outcome of the complaint may have been different if Mr Forbes had complained about the colleague who had showed him the image, as this had been done in the workplace.
This case offers some reassurance to employers, who might be concerned about their employees’ social media activities. That being said, employers should continue to act on, and thoroughly investigate, complaints relating to social media harassment promptly, and have policies and training in place. It is also worth noting that small factual changes to this case – for example if the post had been made during work time, had “tagged” other employees, or if the case had been brought against the colleague who had shown the image – could have resulted in a very different outcome for LHR.
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