In the recent case of Forbes v LHR Airport Ltd, the Employment Appeal Tribunal (‘EAT’) upheld an Employment Tribunal’s (‘ET’) finding that an employee had not posted an offensive image on her private Facebook page ‘in the course of employment’ and therefore the employer was not liable for harassment under ss26 and 109 of the Equality Act 2010.
The Claimant worked for the Respondent as a security officer. One of his colleagues, Ms Stevens, who worked in a similar capacity, shared an image of a golliwog on her private Facebook page with the message “Let’s see how far he can travel before Facebook takes him off”. The image was shared outside of work time, with Ms Stevens’ ‘Facebook friends’ and she did not mention the Respondent or any colleagues in the post.
The Claimant was not friends with Ms Stevens on Facebook but another colleague was. This colleague showed the image to the Claimant who took offence and complained to his line manager that racist images were being circulated in the workplace. An investigation was conducted, Ms Stevens apologised once the offensive nature of the image was explained to her and she was given a final written warning by the Respondent.
The Claimant was subsequently posted to work alongside Ms Stevens. He complained and he was moved to work at another location without any explanation. He was upset by this, and felt victimised and discriminated against because of his prior complaint. He was signed off sick and did not return to work for over four months. The month prior to his return he issued proceedings alleging harassment, victimisation and discrimination.
The ET found for the Respondent and the Claimant appealed on three grounds:
- The sharing of the image was ‘in the course of employment’;
- The ET should not have taken Ms Stevens’ after the event apology into account and it was swayed by the motives of Ms Stevens, rather than the effect of her actions; and
- The Respondent did not take all reasonable steps to prevent the discriminatory act from occurring.
The EAT rejected the appeal on all three grounds.
Firstly, although Ms Stevens had shared an image capable of causing offence, this was not done in the course of her employment. In upholding the findings of the ET, the EAT held that although the image was shared in the workplace, it was not shared in the course of Ms Stevens’ employment. The EAT considered the meaning to the lay person of the words ‘in the course of employment’. The lay person would not consider the sharing of an image on a private Facebook page, not linked to work and largely not accessible by work colleagues was ‘in the course of employment’. It also commented on the fact that the only sharing of the image around the workplace had been a mutual colleague showing the image to the Claimant rather than wide scale sharing and commentary.
Secondly, the fact that Ms Stevens’ apology was to be taken into account was not erroneous and the ET was entitled to consider it as part of the ‘other circumstances’ to be considered when making a finding.
Thirdly, the ET found that the Respondent had taken reasonable steps (omitting the word ‘all’) and, significantly, the Respondent had treated Ms Stevens’ conduct seriously and given her a final written warning. Although there was no evidence that the Respondent took steps to publicise, audit or monitor its policies, this did not mean that they had not taken the necessary ‘reasonable steps’. The actions in relation to the policies, though set out as a recommendation in the Equality Act code of practice (https://www.equalityhumanrights.com/sites/default/files/employercode.pdf at 10.51 and 10.52), are not an absolute requirement. What constitutes reasonable steps depends on the circumstances of the case. The EAT found that the omission of the word ‘all’ did not mean that the ET had not applied the correct test and was entitled to conclude that the Respondent had taken all reasonable steps.
This case is yet another example of issues arising from the blurring of personal and professional lives and use of social media outside of work. Employers can mitigate the increase of claims through a clear social media policy and should approach allegations relating to the use of social media outside the workplace with caution.