Court considers employer’s liability for Facebook posting
A colleague of Mr Forbes, Ms S, posted a picture on her private Facebook page of a golliwog, with the caption “Let’s see how far he can travel before Facebook takes him off”. This image was shared with Ms S’s friends, which included another colleague BW. BW proceeded to show Mr Forbes the image whilst they were at work. Mr Forbes made a formal complaint of harassment, by raising a grievance against Ms S to his employer, LHR Airport Limited (LHR). LHR conducted an internal investigation that resulted in disciplinary proceedings being brought against Ms S. The outcome was Ms S being given a final written warning for breaching LHR’s dignity at work policy. Ms S also apologised to Mr Forbes when it was drawn to her attention that the image was racially offensive.
Mr Forbes brought proceedings in the Employment Tribunal for vicarious liability against LHR with regards to harassment, victimisation and discrimination he suffered through Ms S’s actions.
The ET dismissed Mr Forbes’ complaint, as Ms S’s act of posting the image on Facebook was deemed not to be an act which was done in the course of her employment and therefore LHR could not be held liable for the actions of Ms S. Mr Forbes appealed his case to the Employment Appeal Tribunal.
The EAT unanimously dismissed Mr Forbes’ appeal. The EAT acknowledged that it is widely established that whether or not the action of an employee was committed during the “course of employment” is a question of fact for the Tribunal to determine having regard to all of the relevant circumstances. The EAT also stated that “the words “in the course of employment” are to be construed in the sense in which the lay person would understand them”. There is no clear dividing line between conduct that falls within the scope of being conducted within the course of employment and conduct that falls outside of this; each case is dependent on its own facts.
The EAT, in this case, determined that the factors which the Tribunal considered in this matter to determine whether Ms S’s actions fell within the course of her employment were proper factors to consider. The EAT stated that the Tribunal was correct to hold that a lay person interpreting the words “in the course of employment” in their “ordinary and natural sense” would not consider the sharing of an image on a private non-work related social media account with people who were largely not colleagues of Ms S would constitute an act committed in the course of employment. The other factors which the Tribunal correctly relied on included the fact that the image did not make reference to LHR or any of LHR’s employees; the image was posted outside of work hours; and Ms S did not use LHR’s equipment to share the image. The EAT was also quick to point out that LHR’s internal treatment of the matter was not a determinative factor when deciding if Ms S’s actions were committed within the course of her employment.
Whether an employer can be held vicariously liable for the actions of its employees is ultimately a question of fact for a Tribunal to determine having regard to all of the circumstances. There needs to be a clear connection between the act committed and the employment. Employers will be relieved that internal investigations and disciplinary processes will not be a determinative factor when considering whether the act of their employee was committed within the course of the employment.
¹ 2 WLUK 749