Was an employer liable for an employee’s offensive Facebook posts?

16 July 2019

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At our recent employment law update workshops we talked about the case law on vicarious liability, which is where an employer is held liable for the actions of its employees if those actions are ‘in the course of employment’. Many of the recent vicarious liability cases involve liability for personal injury, although the same principles apply to employment claims.

The recent case of Forbes v LHR Airport was an employment claim – in particular, a complaint of race discrimination.

The facts

Mr Forbes worked as a security officer at Heathrow Airport. His colleagues included B and S. S shared an image of a golliwog on her Facebook page, saying “Let’s see how far he can travel before Facebook takes him off.” Mr Forbes was not friends on Facebook with S, so did not see the post initially, but did so subsequently when B showed it to him. Mr Forbes then complained to his line manager, and the complaint became a formal grievance.

As a result, disciplinary action was taken against S. She apologised and was given a final written warning. However, Mr Forbes was unhappy about being expected to work with S, and ultimately ended up bringing a claim for harassment against LHR Airport on the basis that it was vicariously liable for S’s actions. An Employment Tribunal found LHR was not vicariously liable, so Mr Forbes submitted an appeal to the Employment Appeal Tribunal (EAT).

What was the EAT’s view?

A key question for the EAT was whether the Facebook post had been ‘in the course of employment‘ when it was posted by S.

They agreed with the Tribunal’s conclusion that most ordinary people would not consider that sharing an image on a private Facebook page was something done in the course of employment. Obviously it had later been shown to Mr Forbes by B, but it was the time when S shared the image that was relevant in this case.

The EAT specifically did not want to set down any rigid rules about when social media posts would give rise to vicarious liability. Essentially, they said that whether something is done in the course of employment online will be a question of fact for the Tribunal in each case, taking account of all the circumstances. They said that there may be circumstances in which sharing an image on Facebook could be found to have been in the course of employment, and this is more likely to apply where (for example) the Facebook page is solely or principally used for work purposes.
Usefully, the EAT also commented that just because an employer considers it appropriate to take action against employees for conduct on social media does not necessarily mean that the conduct in question was in the course of employment. Depending on their policies and procedures employers are able to take action for conduct outside work.

Conclusions

Although this case deliberately did not give any clear rules, it is nevertheless useful to illustrate that there needs to be some connection to employment in order for vicarious liability to apply.
It is also important to note that even if LHR had been found to be vicariously liable, the EAT confirmed that they would have been able to defend the claim. This is because in discrimination claims, an employer has a defence if it can show that it took  all reasonable steps to prevent the discriminatory act (section 109(4) of the Equality Act 2010). For this purpose, ‘reasonable steps’ usually includes things like:

 – Having effective policies on equality and harassment (and social media) and ensuring they are up to date

– Ensuring staff are trained and regularly reminded about the policies

– Ensuring any complaints or allegations are investigated properly and any issues addressed

Here, as LHR had appropriate policies and had properly investigated Mr Forbes’ complaint, the EAT were satisfied that the reasonable steps defence would have applied. It is always worth employers trying to put themselves in the best position they can to rely upon this defence.

Conclusions

Although this case deliberately did not give any clear rules, it is nevertheless useful to illustrate that there needs to be some connection to employment in order for vicarious liability to apply.
It is also important to note that even if LHR had been found to be vicariously liable, the EAT confirmed that they would have been able to defend the claim. This is because in discrimination claims, an employer has a defence if it can show that it took  all reasonable steps to prevent the discriminatory act (section 109(4) of the Equality Act 2010). For this purpose, ‘reasonable steps’ usually includes things like:
    • Having effective policies on equality and harassment (and social media) and ensuring they are up to date
    • Ensuring staff are trained and regularly reminded about the policies
    • Ensuring any complaints or allegations are investigated properly and any issues addressed

Here, as LHR had appropriate policies and had properly investigated Mr Forbes’ complaint, the EAT were satisfied that the reasonable steps defence would have applied. It is always worth employers trying to put themselves in the best position they can to rely upon this defence.

If you are dealing with a discrimination issue, or if you would like help with equality policies or training, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
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