Rajveer is a Solicitor who works in the Employment team.
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Following on from our recent Social Media in the Workplace seminar, a recent case Forbes v LHR Airport Limited looks at the issue of whether the posting of an offensive image on Facebook was carried out ‘in the course of employment’.
The Employment Appeal Tribunal (EAT) held, in this case, that an employer was not liable for harassment under Ss.26 and 109 of the Equality Act 2010 when an employee posted a racially offensive image on Facebook and shared it with a colleague.
The Claimant worked as security officer for LHR Airport Limited. One of the Claimant’s colleagues, S, shared an offensive image on her Facebook page with the following message “Let’s see how far he can travel before Facebook takes him off”. This image was shared with S’s Facebook friends and included a colleague, BW, but not the Claimant. BW then showed it to the Claimant who was not one of S’s friends.
The Claimant complained to his line manager which escalated into a formal grievance which was upheld by LHR Airport Limited and S was disciplined. The Claimant was then posted to work alongside S, however the Claimant complained and was moved to another location without explanation.
The Claimant brought a claim for harassment amongst other claims of victimisation and discrimination on the grounds of race against LHR Airport Limited.
The Employment Tribunal dismissed the Claimant’s claims and found that S’s actions were not done ‘in the course of employment’ as she was not at work at the time and she did not mention any colleagues or her employer in the image. The tribunal concluded that the image did not constitute harassment however it accepted that the image was offensive and caused offence to the Claimant. Despite this, the Tribunal found that this was not S’s purpose and S was contrite. The Claimant appealed to the EAT.
The EAT dismissed the Claimant’s appeal. In terms of the issue of whether something is done ‘in the course of employment’ this is a question of fact. A lay person looking at this would not consider that S’s act was done ‘in the course of employment’ as the sharing of the image was on a private non-work related Facebook page and was shared with a list of friends that largely did not include colleagues.
The tribunal was correct to focus its attention on the time at which S shared the image on her Facebook page because this was the act of alleged harassment that the tribunal was required to consider. The EAT did, however, note that BW’s act of showing the image to the Claimant may have been regarded as done ‘in the course of employment’ however this was not how the Claimant had put forward his claim.
As this case demonstrates there is no one rule for all which applies. The EAT commented that they did “not consider that it is possible or even desirable to lay down any hard and fast guidance in respect of these matters, especially as the extent to which social media platforms are used continues to increase”. As a result, whether something is done ‘in the course of employment’ will be a question of fact in each case.
If you have any questions on the topic of social media in the workplace, or any other employment matter, please contact our team on 0113 849 4059 or email email@example.com