Will your organisation be liable for an employee’s offensive Facebook post?

The EAT upheld an Employment Tribunal’s decision that a racially offensive Facebook posting was not done in the course of employment and, accordingly,…

In Forbes v LHR Airport Ltd the Employment Appeal Tribunal upheld an Employment Tribunal’s decision that a racially offensive Facebook posting was not done in the course of employment and, accordingly, the employer was not liable (notwithstanding that complaints were received from a member of staff).

The case is also a reminder that, in certain circumstances, a prompt apology can assist in defending potential claims, rather than (in many cases) it being viewed as an acceptance of liability and therefore something to be avoided.

Harassment: the legal test

The Equality Act 2010 provides that a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic (for example, race), and the conduct has the purpose or effect of:

  • Violating B's dignity; or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct has the effect referred to above, each of the following must be taken into account:

  • The perception of B;
  • The other circumstances of the case; and
  • Whether it is reasonable for the conduct to have that effect.

The Equality Act also provides that anything done by a person (A) in the course of A's employment must be treated as also done by the employer. This concept is known as ‘vicarious liability’.

It does not matter whether that thing is done with the employer's knowledge or approval. However, an employer may have a defence to any claim against it if it can show that it took all reasonable steps to prevent A from doing that thing, or from doing anything of that description.

What happened?

In this case, a colleague (“S”) of the claimant posted a racially offensive image on her private Facebook page which was shared with S’s Facebook friends, including another colleague (“X”) who subsequently showed the post to the claimant.

A complaint of harassment was received by the employer, resulting in S apologising and also being issued with a final written warning. The claimant was rostered to work alongside S and, when he raised concerns, he was moved to another location. He then commenced Employment Tribunal proceedings in relation to allegations of harassment, victimisation and discrimination.

The Employment Tribunal dismissed the complaint. It found that although the image was capable of giving rise to offence on racial grounds, S’s act of posting the message on her Facebook page was not done in the course of her employment. Her employer could not therefore be held liable.   

When will an employer be vicariously liable?

Whether an employer will be liable for the discriminatory acts of an employee is often relatively straightforward to determine; for example, when an employee is harassed about their work, by their colleagues, whilst at work, on a regular basis. However, as in this reported case, the line can sometimes be blurred.

The Employment Tribunal’s finding that the Facebook posting was not done in the course of employment took into account a variety of factors, including the following: 

  • S was not at work when she posted the image;
  • S did not use her employer’s equipment;
  • S’s post did not refer to her employer;
  • It was a private Facebook account; and
  • The image was shared amongst Facebook friends, one of whom, X, happened to be a work colleague who took the subsequent step of showing the image to the Claimant at work.

Comment     

It is likely that the outcome of the complaint would have been different if the claimant’s colleague, X, who was included in the list of S’s Facebook friends, had been the target of the harassment complaint, as the act of showing the image to the claimant was done in the workplace and could, arguably, be said to have been done ‘in the course of employment’.

This employer would perhaps not have avoided liability if the complaint before the Employment Tribunal had been pleaded differently.

We suspect that the outcome may also have been different if, for example, S had used her employer’s IT equipment and posted the image whilst at work, thus moving the incident closer to being “in the course of employment”.

It is also important to remember that this case was about when the employer was liable, rather than the limits upon what they could rely in pursuing disciplinary action. It can sometimes be appropriate to take action about conduct, even if you are not strictly liable for it as the employer.

The value of apology

Of particular note in this case was that the Employment Tribunal also concluded that the sharing of the image did not have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. When considering this question, the Employment Tribunal properly took into account the perception of the claimant, the other circumstances of the case, and whether it was reasonable for the conduct to have that effect.   Part of its reasoning focussed upon S’s willingness to apologise in relation to the matter.

On appeal, the Employment Appeal Tribunal agreed that the Facebook posting had not been made in the course of employment and did not have the effect of harassing the claimant. It stated that, in appropriate circumstances when determining the second issue, an Employment Tribunal can take account of an apology that is made shortly after the impugned conduct or the immediate cessation of the conduct once it is brought to the employer’s attention. The apology in this case appears to have been a significant factor which was taken into account by the Employment Tribunal when determining whether S’s actions amounted to harassment of the Claimant.

This case is a reminder that, in certain circumstances, a prompt apology can assist in defending potential claims, rather than being viewed as a potentially damaging acceptance of liability (which employers are often keen to avoid). While, as always, careful analysis of the facts is required, it may be appropriate for HR to suggest that an employee, such as S, should make an apology to an offended colleague. After all, once an inappropriate and/or offensive comment has been posted to social media, an employee will often struggle to deny the acts which are the subject of complaint.

Finally, care should also be taken to consider reputational issues at an early stage, particularly when comments could potentially be shared with a wide internet audience.

Nick Newman is a Principal Associate in the Employment, Pensions and Immigration Team and is based in Leeds. If you have any questions, please do not hesitate to contact Nick at nick.newman@weightmans.com or speak to your usual Weightmans advisor.

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