Employer held not to be liable for an employee's racially offensive social media post

In Forbes v LHR Airport Limited, the EAT has held that a security officer was not discriminated against after being shown a colleague’s offensive Facebook post in the workplace. 

Background to the claim

In November 2016, a colleague of Forbes showed him a Facebook image that had been posted by another colleague, Deborah Stevens. The image was of a golliwog which had the caption, “Let’s see how far he can travel before Facebook takes him off”. Forbes was not on Stevens’ friends’ list and would not have seen the post unless it was shown to her.

Forbes was shocked and appalled at seeing the image and complained to his Line Manager that “racist images were being circulated in the workplace”. The Manager accepted that Stevens had shared the image on Facebook, but told Forbes that no further action would be taken unless he raised a formal grievance. Forbes raised a formal grievance which was upheld. Stevens received a final written warning for conduct which was in breach of the Respondent’s dignity at work policy.

On 4 December 2016 Forbes and Stevens were posted to work together on a shift. Forbes raised a concern with his union representative that he had been posted to work alongside Stevens despite having previously raised a successful grievance against her. As a result Forbes was moved to work at a different location, to avoid having to work alongside Stevens. This left Forbes feeling upset as he felt he was being victimised and discriminated against for doing a protected act, namely complaining about the image. Forbes was signed off of work by his GP the next day and did not return until 27 April 2017. Before returning to work, Forbes issued proceedings in the Employment Tribunal (“ET”) alleging harassment, victimisation and discrimination.

The Tribunal’s decision

The ET held that:

1. Stevens had shared an image that was capable of giving rise to offence on racial grounds, though she had not done so in the course of her employment. This was because the image was not shared whilst Stevens was at work, it made no reference to the Respondent or any of its employees, no one in the Respondent’s employment was mentioned in the post and the image was not posted using the Respondent’s equipment.
2. Stevens had offered to apologise and attend mediation which mitigated the effect her actions would have had on Forbes.
3. The Respondent had taken reasonable steps to prevent employees from committing discriminatory acts and that it had policies which made clear the behaviour complained of was unacceptable and that contractual documents brought these policies to the attention of its employees.

In the circumstances the Respondent was not vicariously liable for Stevens’ actions and the Claimant’s claims were dismissed.

The Claimant’s appeal

The Claimant appealed the ET’s decision. In February 2019 the Employment Appeal Tribunal (“EAT”) unanimously upheld the ET’s decision holding that:

1. The ET’s finding that the sharing of the image was not in the course of employment was correct. The words "in the course of employment" are to be understood in their ordinary and natural sense as they would be by the lay person. 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 not an act done in the course of employment. 
2. In determining whether there is an intimidating, hostile, degrading, humiliating or offensive environment a Tribunal must consider whether conduct has the purpose or effect of creating that environment and can take into account an apology that is made shortly after the impugned conduct or the immediate cessation of the conduct once it is brought to the Respondent's attention.
3. It was significant that the Respondent treated Stevens' conduct seriously and gave her a final written warning. The EAT was therefore satisfied the Respondent did take reasonable steps to prevent its employees from committing discriminatory acts. 

Whilst the employer here escaped being vicariously liable it demonstrates the dangers posed by social media. The post might have been in the course of employment if the Facebook page had been used primarily for the purpose of communicating with work colleagues or was routinely used for the purpose of communicating work related matters.

Whilst there was no evidence of “hostility” between the Claimant and the person showing them the post, if there had been that might also have pointed to a different answer. There could well be arguments about who is the primary harasser.

The judgment highlights, yet again, the dangers posed by social media and the need for employers to have not only robust policies in place but also to ensure that the policies are enforced and that it has taken reasonable steps to keep these to the forefront of employees’ minds. An employer’s policy on social media posts should be clearly set out and well-known. Simply having a policy will not be sufficient, or raising the issue of equality at induction.

Complaints about allegedly discriminatory acts need to be taken seriously, be investigated and if necessary appropriate action taken. Employers should ensure that they have a programme in place which allows them to demonstrate that they have taken reasonable steps to prevent employees committing discriminatory acts.