Under the Equality Act 2010 (EqA), harassment is defined as unwanted conduct related to a protected characteristic, which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading humiliating or offensive environment. An employer will be vicariously liable for the unlawful acts of its employees which are done in the course of employment. Whether an act was committed in the course of employment depends on the facts including whether the act was done at work or outside of work. However, the employer has a defence if they can demonstrate that they took all reasonable steps to prevent an employee from doing the act complained of.
The claimant (Mr Forbes) worked for LHR Airport as a security officer. One of Mr Forbes' colleagues, Ms Stevens, posted an image of a golliwog on her private Facebook page with the caption "let's see how far this can travel before Facebook takes him off". The image was shared with Ms Stevens's friend list, which included another colleague, BW. BW showed the image to Mr Forbes who complained of harassment by Ms Stevens. LHR Airport commenced disciplinary proceedings against Ms Stevens, who immediately apologised when the racially offensive nature of her post was explained to her, and gave her a final written warning. Mr Forbes was then rostered to work alongside Ms Stevens and, when he complained, he was moved to another location. He brought a claim alleging harassment, victimisation and racial discrimination.
The Employment Tribunal found, whilst the image was capable of giving rise to offence on racial grounds, Ms Stevens's act of posting this was not one which was done in the course of her employment and therefore not one which LHR Airport could be liable. Mr Forbes appealed.
Employment Appeal Tribunal (EAT)
The EAT dismissed the appeal finding that the posting of the photo was far enough removed from the work environment that LHR Airport could not be held responsible.
The EAT noted that whether something was done in the course of employment would be a matter of fact and there may be circumstances where sharing an image on Facebook could be done in the course of employment, such as where the page is solely or principally used for work purposes. The EAT went on to note that where action is taken against employees for such conduct, this does not necessarily mean the conduct is done in the course of employment. The EAT believed the Employment Tribunal had taken into account all relevant factors in deciding whether harassment had occurred, including Mr Forbes' perception and "other circumstances". These included the fact the image had been shared privately and not while Ms Stevens was at work; Mr Forbes was not on her friend list; and that Ms Stevens had apologised.
With the now universal use of social media, this case is a useful reminder to employers of the importance of having clear policies on equality, harassment and bullying and the use of the internet and social media so that employees understand the potential consequences at work of sharing private messages. Employers will not be liable for the unlawful acts of their employees if they can show that they have taken all reasonable steps to prevent the employee from acting unlawfully. What will be reasonable depends on the facts of the case. Under the EqA Statutory Code of Practice, however, reasonable steps might include:
• implementing an equality policy;
• ensuring workers are aware of the policy;
• providing equal opportunities training;
• reviewing the equality policy as appropriate; and
• dealing effectively with employee complaints.
Although the employer was not vicariously liable on the facts of this case, as the EAT commented, there may of course be many circumstances where the sharing of an image on a Facebook page could be found to be an act done in the course of employment.
Authored by Helga Breen and Ingrid Nixon.