Further to the recent Employment Appeal Tribunal case of Forbes v LHR Airport Ltd, Aleksandra Traczyk explores when offensive content shared on Facebook by an employee, may constitute “harassment” done “in the course of employment” and render the employer vicariously liable for the actions of the employee.
We live in the era of social media, employees will often “friend” one another and it is extremely difficult for an employer to police what material colleagues then share with each other. The question therefore arises, in what circumstances could an offensive comment posted by one employee on social media constitute harassment towards another, and more importantly when can it amount to an act done in the course of employment and render the employer vicariously liable for the actions of the offending employee?
In the case of Forbes v LHR Airport Ltd, the complaining employee (F) was not the offending employee’s (S) friend on Facebook. However, S was friends with another colleague (BW). BW showed the offending post to F, who then complained to his line manager about S. The offending post by S was an image of a racist caricature, accompanied by the message “Let’s see how far he can travel before Facebook takes him off”. F’s complaint escalated to a formal grievance. S apologised and was given a final written warning. When F was later posted to work alongside S, he complained and was moved. F then went off sick and eventually brought a claim of harassment, amongst other things, against LHR.
The Employment Tribunal had to consider two main issues – whether the post constituted “harassment” and whether it was done “in the course of employment” (potentially rendering LHR vicariously liable for S’s actions).
On the issue of harassment, the Tribunal accepted that the post was offensive and that it caused offence to F. However, it found that this was not the purpose of S’s post and that taking into account her willingness to apologise, it was not reasonable for S’s conduct to have that effect on F. S’s conduct therefore did not meet the threshold for harassment.
In relation to S’s actions in posting the image on Facebook, the Tribunal found these were not done ‘in the course of employment’. This was because S was not at work at the time and she did not mention any of her colleagues or LHR in the post. The Employment Appeal Tribunal, to which F later appealed, agreed, commenting that whether an act was done ‘in the course of employment’ would always be a question of fact and that these words should be construed in a sense in which a lay person would understand them. The lay person would not consider that the sharing of an image on a private non-work-related Facebook page, with a list of friends that largely consisted of non-colleagues, was an act done in the course of employment and this did not therefore make the employer vicariously liable for the actions of the offending employee.
The outcome may have been different if BW had been the target of F’s harassment complaint, as his showing of the image to F was done in the workplace. However, this was not the issue the Tribunal had to consider.
An employer will have a defence if it has taken all reasonable steps to prevent the discriminatory act from occurring. Employers should therefore take care to ensure that their anti-bullying, harassment and equality policies are up to date and easily and widely accessible to employees, regardless of whether harassment occurs on social media or not.