The Employment Appeal Tribunal (EAT) has held in Forbes v LHR Airport Ltd that an employer was not liable for harassment when an employee posted a racially offensive image on Facebook and shared it with a colleague.
The claimant worked for the respondent as a security officer. One of his colleagues, S, shared an image of a golliwog on her Facebook page, which was accompanied by the message "Let's see how far he can travel before Facebook takes him off". The image was shared with S's Facebook friends, one of whom was another colleague who later showed the image to the claimant. The claimant raised a formal grievance and S was subject to a disciplinary investigation and issued with a final written warning. Later the claimant was posted to work alongside S and complained. He was moved to another location without explanation, went off on sick leave and then brought a claim of harassment.
The EAT considered the issue of whether S's posting on Facebook was done "in the course of employment", noting that this was a question of fact, and that the words should be interpreted in the same way as they would be by a lay person. It concluded that a lay person would not consider that the sharing of an image on a private non-work-related Facebook page, with a list of friends that largely did not include colleagues, was an act done in the course of employment. The EAT did accept that there may be circumstances in which sharing an image on Facebook could be found to be done in the course of employment, such as where the Facebook page is solely or principally used for work purposes. It also noted that the fact that the employer considers it appropriate to take action against employees for the conduct (which it had here) does not mean that the conduct in question is necessarily done in the course of employment.
Take note: Although the employer was not held to be vicariously liable for the posting of an offensive image on Facebook by one of its employees this will not necessarily always be the case. Here there was a limited crossover between the employee's Facebook friends and her work colleagues and so her conduct was not deemed to be in the course of employment. However, the decision might have been different if the Facebook page was somehow linked to the employer, or if the image was visible to a group of work colleagues.
