Employment and Immigration Law Update – Facebook post – in the course of employment?

In this case, the Employment Appeal Tribunal (EAT) considered whether an employee’s Facebook post of a racially offensive image was done ‘in the course of employment’, rendering the employer vicariously liable for the alleged harassment.

Forbes v LHR Airport Ltd, UKEAT/0174/18

Facts

The claimant, a security officer, was shown an image of a golliwog that had been shared on a colleague’s Facebook page. He complained about the image to his line manager and subsequently brought a formal grievance, which was upheld. The colleague, S, was subject to disciplinary proceedings, resulting in a final written warning being issued and an apology given to the claimant.

The claimant was later rostered to work alongside S, but he was moved to another location after complaining. He pursued a complaint of harassment against the employer, which was dismissed by the employment tribunal. It found that the sharing of the image on Facebook was not done ‘in the course of employment’, which is a requirement in order to establish employer liability for harassment. S was not at work at the time she posted the image and did not mention any colleagues or her employer in the post, although some of her Facebook friends were also colleagues. The claimant appealed to the EAT.

EAT decision

The EAT dismissed the appeal, agreeing with the tribunal that the Facebook posting was not done ‘in the course of employment’.  The fact that the image was later shown to the claimant was not relevant to the question of whether S’s act of sharing it was done in the course of employment.  It is a question of fact in each case and ‘in the course of employment’ should be construed in the sense that the lay person would understand. Sharing a post on a private, non-work-related Facebook page, with a list of friends who were largely not colleagues, would not ordinarily be considered an act done in the course of employment.  The EAT observed that potentially, the act of showing the image to the claimant (in the workplace) could have been regarded as being ‘in the course of employment’, making the employer vicariously liable for the alleged harassment, but the claim had not been presented in that way.

Consequences

This case demonstrates the type of factors that a tribunal will consider in the context of an allegation of harassment to determine whether or not it occurred in the course of employment. It also illustrates the fine line between what may be considered an individual’s private life and their work.

The EAT noted that it was not possible, or even desirable, to lay down any hard and fast guidance as to when such conduct should incur employer liability, particularly in the context of social media. There may be many circumstances when the sharing of an image on Facebook could be found to have been done in the course of employment. This might include, for example, if the Facebook page is used principally for work purposes. It is also more likely to be the case if the individual identifies their employer on their Facebook page.

Interestingly, the EAT also noted that the fact that an employer considers it appropriate to take action against employees for their conduct does not necessarily mean that the conduct in question is done in the course of employment. Having a robust social media policy in place, and including social media activities as potential grounds for disciplinary action, will assist employers in dealing with this type of issue within the workplace.

This article is from the July 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at July 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.