The Employment Appeal Tribunal (EAT) looked at just that in Forbes v LHR Airport Limited.
What happened?
The claimant worked as a security officer at Heathrow Airport. His colleague, Ms S, posted an image of a golliwog on her private Facebook profile, with the caption: “Let’s see how far he can travel before Facebook takes him off.” The image was shared with her Facebook friends, including another colleague who showed the post to the claimant. The claimant then complained of harassment under the Equality Act 2010 (Act) to his employer.
Following a disciplinary process, Ms S apologised and received a final written warning – but, she continued to work alongside the claimant. Naturally, the claimant raised a concern, but was then moved to work at another location without any explanation. Aggrieved, the claimant then brought a claim against his employer for harassment, victimisation and discrimination.
What was decided?
Notably under the Act, an employer can be found “vicariously liable” for the acts of its employees – i.e. where it’s found to be indirectly to blame as a result of such acts. To be held vicariously liable though, an act must be done “in the course of employment”. Whilst this may seem a simple enough link, it’s often complicated to pin down what it actually means in practice – particularly, as the EAT considered here, in the context of a “virtual landscape” (like social media).
In this case, the EAT decided there was no sufficient link, and the employer was let off the hook.
According to the tribunal, there’s no hard and fast rule – whether something amounts to being in the course of employment is “a question of fact for the Tribunal in each case having regard to all the circumstances.”
In reaching its decision, the EAT found that “all the circumstances” of this case included the fact that the post:
- was made outside of work
- was shared on the employee’s private and non-work-related Facebook account (whose friends list didn’t consist mainly of colleagues, including the claimant)
- didn’t make any reference to the employer or its employees, and
- hadn’t been made using the employer’s equipment.
What does this mean in practice?
This decision seems to go against the current trend of first-tier tribunals, who have been willing to find a tangible link between employees’ social media and their work or the reputation of their employers.
Nevertheless, the case reminds us the balancing act of considering whether an act is “in the course of employment” is very fact-dependent. Equally, the factors to consider are the same in the context of an online working environment and a physical one. The ultimate test is whether there is a sufficient link between an employee’s activity (which doesn’t need to be part of their normal duties) and their work.
Though not a ground-breaking case, employers should see Forbes as a reminder to ensure they have adequate policies and procedures in place, and even consider undertaking staff training on appropriate use of social media. On the other hand, it should serve as a prompt for employees to think twice before posting anything risqué or offensive online – particularly if it can somehow be connected to their job.
