The prevalence of social media at work continues to grow, along with people’s appetite to share their personal views and activities online. Within such a landscape, when will an employee’s social media posts be sufficiently connected to their employment to attribute liability for any wrongdoing to their employer?
The recent Employment Appeal Tribunal (EAT) case of Forbes v LHR Airport Limited considered this issue and found on the facts that the employer was not liable under the Equality Act 2010 for the racially offensive image and caption posted by an employee on their private Facebook page.
In this case an employee (A) shared an offensive image of a golliwog along with a caption: ‘Let’s see how far he can travel before Facebook takes him off’ on their private Facebook page. A fellow work colleague (B) was amongst A’s Facebook friends and B later showed the image to another colleague at work – Mr Forbes. Mr Forbes was “shocked” and “appalled” by the image and complained to his employer, LHR Airport Limited that racist images were being circulated in the workplace.
Mr Forbes later raised a grievance and following a disciplinary investigation, A was given a final written warning and apologised for her actions. Mr Forbes was then posted to work with A and he raised a complaint about this. Mr Forbes was thereafter relocated without explanation and the following day was signed off sick. Shortly before his return from sick leave Mr Forbes raised claims of harassment, victimisation and discrimination against LHR Airport Limited under the Equality Act 2010.
Employers can be liable for the actions of their employees, known as ‘vicarious liability’. Under the Equality Act 2010, in respect of discriminatory acts such liability will be imposed if the employee’s act is done ‘in the course of their employment’. Whether or not there is a sufficient connection between the discriminatory act and the employee’s employment is very fact dependent.
It does not matter whether or not the thing has been done with the employer’s approval. The employer may have a defence if it can show that they took all reasonable steps to prevent the employee from acting unlawfully e.g. by implementing effective policies and training (and ensuring workers are aware of them); and dealing effectively with employee complaints.
In this case, the EAT held that the posting of the image was not done within the course of A’s employment and therefore the employer was not liable.
The EAT emphasised the fact sensitive nature of vicarious liability cases and stated that laying down set guidance of when liability would be attributed to the employer in cases involving social media was not appropriate:
Just as is the case with the physical work environment, whether something is done in the course of employment when done in the virtual landscape will be a question of fact for the Tribunal in each case having regard to all the circumstances. No clear boundary as to when such conduct will be in the course of employment can be defined
However, key factors which the EAT took into consideration in reaching its decision included that the post:
- had been made outside of work and neither the employer’s equipment nor network was used;
- was on a private non-work related Facebook page;
- made no reference to the employer or their business;
- was shared with a list of friends which largely excluded work colleagues and which importantly didn’t include Mr Forbes.
The EAT also noted that:
- the fact that the employer treated the act of sharing the image on Facebook as a disciplinary matter did not necessarily mean that it had been done within the course of employment; and
- there could potentially be situations where the sharing of an image on a Facebook page could be deemed to fall within the course of an employee’s employment, such as where the page is used for raising work-related matters, or where an employee’s work activity is partly conducted online at home.
The EAT recognised that social media adds a further complexity to the already difficult task of determining whether an employee is acting within the course of their employment for vicarious liability purposes under the Equality Act 2010. Despite no concrete principles being laid down by the court, this decision provides some useful indicators which may come into play when deciding which side of the line liability may fall. It also confirms that a tangible link must exist between the employee’s social media activity and the workplace and/or their colleagues.