Sharing offensive image on Facebook was not done 'in the course of employment'

Forbes v LHR Airport Ltd

The posting of a racially offensive image via a personal Facebook account was not done ‘in the course of employment’ and was therefore not an action for which the employer could be vicariously liable.

Harassment is defined in s. 26 of the Equality Act 2010 as unwanted conduct related to a protected characteristic, which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for the person exposed to it. The legislation (s. 109) also imposes vicarious liability on an employer for the actions of its staff unless all reasonable steps have been taken by the employer to prevent the act complained of.

Background

Mr Forbes and Ms Stevens were security officers at LHR. Ms Stevens had a Facebook account. She shared an image on her Facebook page of a golliwog accompanied by the message ‘Let’s see how far he can travel before Facebook takes him off’. The image was shared with people who were on her list of Facebook friends. One of those friends was a work colleague, BW. Mr Forbes was not on that list. BW showed the image on Ms Stevens’ Facebook page to Mr Forbes, who was shocked and appalled that she had posted it. He complained to his line manager that racist images were being circulated in the workplace. His grievance was upheld and Ms Stevens, despite apologising when the offensive nature of the image was explained to her, received a final written warning for breaching LHR’s Dignity at Work policy. Shortly thereafter Mr Forbes was posted to work alongside Ms Stevens which he objected to and resulted in him being moved to another location without any explanation. He was signed off sick. Shortly before his return to work four months later he brought a tribunal claims against his employer of harassment, victimisation and discrimination. To obtain a remedy, Mr Forbes had to rely on the vicarious liability provisions of the Equality Act 2018, s. 109. A tribunal dismissed his complaints and Mr Forbes appealed.

EAT decision

His appeal was dismissed.

The EAT began by reviewing the case law on vicarious liability. It commented that, at the end of the day, it’s basically a question of fact, taking into account all the circumstances, and that whether something is done ‘in the course of employment’ should be construed as a lay person would construe it. Relevant factors would include whether the act was done at work or outside work – and if outside work, whether there was a sufficiently close connection with work.

While such an approach is relatively straightforward when dealing with the physical environment of work, the EAT commented that it’s far less easy to apply when dealing with the virtual world:

‘Thus, it may not be very easy to say whether a person is doing something whilst at work where some of that person’s work activity is conducted online at home. Equally, it may be very difficult to ascertain whether there is a sufficient nexus between an activity carried out on a personal social media account and their employment. If that account is used for purposes relating to work then it might well be open to the tribunal to consider that there is a sufficient connection with work to render an act done on that social media account as being done in the course of employment; whereas if the link with work is tangential or more tenuous then it might well be open to the tribunal to conclude otherwise’.

The EAT declined to lay down any hard and fast guidelines in this respect.

Turning to Mr Forbes’ appeal, the EAT held that the factors relied upon by the tribunal in deciding that the sharing of the image by Ms Stevens was not ‘in the course of employment’ were proper ones to take into account. 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 did not include work colleagues, was an act done in the course of employment. Other factors taken into account included the fact that Ms Stevens was not at work when the image was posted, that the image had not made reference to LHR or any of its employees, and that Ms Stevens did not use LHR’s equipment in sharing the image.

The fact that BW showed the image to Mr Forbes did not help in proving that Ms Stevens’ act was ‘in the course of employment’. The tribunal had correctly focused on the time at which Ms Stevens had shared the image because that was the act of harassment in issue.

The EAT commented that:

‘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. This could include situations where the Facebook page is solely or principally maintained for the purposes of communicating with work colleagues or is routinely used for raising work-related matters. In those circumstances, one can see that an ostensibly private act could be regarded as being sufficiently closely connected to the workplace to render it an act done in the course of employment. Whether or not such an act is seen as such will depend on the facts of the individual case’

Having found that LHR was not vicariously liable, the EAT (despite not legally needing to do so) went on to consider the other two aspects of Mr Forbes’ appeal.

Relevance of apology

Mr Forbes argued that the tribunal, when considering whether Ms Stevens had harassed him, wrongly took account of the apology offered by Ms Stevens. That was permissible said the EAT. The definition of harassment in s. 26 refers to ‘the other circumstances of the case’ – this is not confined to those circumstances existing at the time of alleged harassment. A tribunal, when considering whether conduct has the purpose or effect of creating a hostile and intimidating environment, may, in appropriate circumstances, take account of an apology that is made shortly after the conduct or the immediate cessation of the conduct once it is brought to the employer's attention.

Taking all reasonable steps to prevent discrimination

Mr Forbes also argued that LHR had not adhered to the recommendations of the statutory code of practice as regards the reasonable steps an employer might take to prevent discrimination occurring, specifically para. 10.51 and 10.52. The EAT also rejected this ground of appeal. It pointed out that the code does not list statutory requirements which must be met for an employer to have taken all reasonable steps. The steps that are reasonable depend on the facts in any particular case. Here LHR had treated the conduct of Ms Stevens seriously and given her a final written warning. Notwithstanding the absence of any evidence as to the publication, auditing or monitoring of its policy, the tribunal was entitled to conclude that LHR had taken reasonable steps to prevent its staff from carrying out such discriminatory actions.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0174_18_2802.html

Comment

In the course of its judgment the EAT did comment that perhaps BW’s act of showing the image to Mr Forbes at work could have been regarded as something done ‘in the course of employment’ – but that was not the issue for the tribunal here as it was the actions of Ms Stevens which were being litigated.

The EAT’s comments with regards to an apology are also very interesting and another reminder why apologies in these circumstances are so important and may be taken into account by a tribunal when deciding if there has been harassment.