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17 Jul 2019

Can an employer be vicariously liable for an employee’s racist Facebook post?

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The answer unhelpfully is that it depends on the factual circumstances, according to the Employment Appeal Tribunal (EAT).

The EAT recently held in Forbes v LHR Airport Limited that an employer was not vicariously liable for harassment on the grounds of race under the Equality Act 2010 after an employee shared a racially offensive image on her private Facebook account.

Facts

The claimant, F, worked at London Heathrow Airport (“LHR”). F’s colleague, S, shared an image of a golliwog on her private Facebook page. The image was accompanied by the message, ‘Let’s see how far he can travel before Facebook takes him off.’ F was not Facebook ‘friends’ with S so he did not initially see the post, but another colleague, B, showed F the image while they were both at work.

F raised a grievance and subsequently a claim that LHR was vicariously liable for S’s actions.

The EAT held that the act of posting the image on social media was not “in the course of employment” (the key test in such cases) and accordingly, LHR could not be liable. The basis for this was:

  • S was not at work at the time she posted the offensive image
  • The image made no reference to LHR or any of its employees
  • S did not use the employer’s systems or equipment in sharing the post 
  • S’s Facebook account was private and her Facebook ‘friends’ were largely personal friends, with a small number of work colleagues (which didn’t include F), and
  • LHR was found to have taken reasonable steps to prevent discrimination by taking S’s misconduct seriously and giving her a final written warning under its disciplinary procedure. 

What does this mean for employers?

This judgment does not mean that employers cannot be liable for their employees’ social media posts. Whether or not an act is “in the course of employment” will depend entirely on the facts of each case - the EAT was reluctant to provide any prescriptive guidance, which is understandable. For example, had S shared the image on Facebook using her work computer on her lunch break in the office, the result may have been different.

Given that nearly a third of the world’s population use Facebook, the risk posed by employees posting discriminatory images or statements on social media is immeasurable. The increasingly blurred line between work and personal lives compounds this.

Employers can mitigate against this risk by ensuring that they have robust policies and procedures in place to govern employees’ use of social media and IT. Such policies must make it clear that employees must not make or engage in any activity which may damage the reputation or business of their employer, or post or condone content that is offensive, discriminatory or abusive, irrespective of whether in or outside of work or on a public or private social media account. Policies should be supported by regular training to staff about workplace behaviour, to highlight the risk and issues to staff.  In this case, LHR was right to deal with the matter under its disciplinary procedure.

We would be delighted to advise you with drafting new, or reviewing existing, social media or equal opportunities policies, or to assist with delivering appropriate training to help you mitigate the risk in this area. Since 2017, we have seen a significant increase in demand for this type of support from our team. Please contact Paul Reeves, Kate Higgins or your usual Stephenson Harwood contact for further assistance.

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