Forbes v LHR Airports Limited (EAT)
The EAT has held that an employee who posted racially offensive imagery on Facebook, but did not reference her employer and did not direct the content at her colleagues, had not made the post "within the course of her employment". Her employer was therefore not vicariously liable for her actions, which a co-worker alleged amounted to harassment under the Equality Act 2010.
The Claimant was a security officer at LHR Airport Ltd ("LHRA"). One of his colleagues shared an image of a golliwog on her personal Facebook page, accompanied by a message which acknowledged its potentially racist connotations. The Claimant was shown the post by another colleague whilst at work and submitted a grievance, which was upheld. Although the individual who made the post apologised and received a final written warning following a disciplinary process, the Claimant went off sick after subsequently being posted to work alongside her. He brought an Employment Tribunal claim of harassment against LHRA, arguing that his employer should be vicariously liable for his colleague's unlawful act of discrimination.
The ET dismissed the Claimant's claim on the basis that the offending Facebook post was not published "in the course of employment" and vicarious liability could therefore not be imposed. On appeal, the EAT agreed. It confirmed that whether an act takes place in the course of employment is a broad question of fact; in this case, it considered that the average person would not deem the content, which was posted on a private, non-work Facebook page, with an immediate audience of largely non-professional "connections", as an image which had been posted in the context of her employment. Whilst the Claimant's viewing of the content at work could meet the factual requirements for vicarious liability, the focus should be on the act of the alleged "harasser" as opposed to the subsequent dissemination of the content.
Whilst the EAT decided in favour of the employer in this case, the judgment reiterates that the test for imposing vicarious liability is highly flexible and fact-sensitive. The use of social media presents particular risks in this regard; employers should be proactive in establishing clear guidelines and rules regarding employee use of social media, which include reference to potential disciplinary consequences in the event that these are breached. The link between the offender's social media account and the relevant employer and/or its staff is likely to be a critical feature of any assessment of vicarious liability.