Opinion

Employee’s racially offensive image posted on Facebook was not in the course of employment

29th July 2019

Employee’s racially offensive image posted on Facebook was not in the course of employment

The EAT has considered whether sharing a picture of a golliwog on an employee’s Facebook page could be deemed to be in the course of employment, therefore making the employer vicariously liable.

In the case of Forbes v LHR Airport Ltd, the employer was alerted by Mr Forbes of a racially offensive image shared by Ms Stevens’ on her Facebook. Mr Forbes complained to his employer and submitted a formal grievance regarding the picture. The grievance was upheld but Mr Forbes was posted to work with Ms Stevens and then moved to another location as a result. This led Mr Forbes to bring a claim of harassment against his employer.

For an employer to be vicariously liable for harassment, the alleged act must be committed by employees in the course of employment. The EAT noted that they must view the matter in basic terms. The EAT noted that the image was shared on a private Facebook account with no connection to the employer, that Ms Stevens had few employees on Facebook and that the picture was not targeted at Mr Forbes.

Due to the lack of cross over with work and her private Facebook account it was held that the picture sharing was not in the course of employment.

However, the EAT accepted that this is not a blanket application and there could be many circumstances where the sharing of an offensive image could be held as in the course of employment.

Employer Considerations

It is easy to see how a small change in facts could have changed the outcome here. If the employee had posted this image during work time, on a work device or to a group of work colleagues, the likelihood of the act being outside of the course of employment is much lower.

When defending vicarious liability claims such as these, employers must demonstrate they had taken all reasonable steps to prevent the alleged discriminatory act from occurring. Therefore employers should ensure that all policies, including social media policies, are up to date and that line managers have had suitable training on their application. Further, steps should be taken to ensure employees are aware of these policies.

 

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