Was an employer liable for their employees sharing of a racially offensive image on Facebook?

The Employment Appeal Tribunal (“EAT”) has held in the recent case of Forbes v LHR Airport Ltd that the employer was not.

The Claimant was employed as a security officer for the Respondent, LHRA. One of his colleagues, DS, shared an image of a golliwog on her personal Facebook page with the caption “Let’s see how far he can travel before Facebook takes him off”. One of DS’s colleagues, BW (who was also a Facebook friend of DS) showed the image on Facebook to the Claimant (who was not a Facebook friend of DS) and he complained to his Line Manager. This was dealt with as a formal grievance, which the Respondent upheld, and DS received a final written warning.

The Claimant was subsequently rostered to work alongside DS but complained and was moved to another location without explanation. The Claimant went off sick and eventually brought claims against his employer under the Equality Act 2010 (“EqA”) for harassment, victimisation and discrimination on grounds of race. All claims were dismissed by the Employment Tribunal who found that DS’s actions in sharing the image were not done ‘in the course of employment’ which is an essential element of employer liability under the EqA. The Tribunal found that DS had not posted the image whilst at work, or on a work computer, it was shared amongst a private group which did not include the Claimant and made no reference to her colleagues or employer.

The EAT dismissed the Claimant’s appeal. On the issue of whether something is done ‘in the course of employment’, either in the 'virtual landscape' or the physical work environment, it noted that this is a question of fact for the Tribunal in each case having regard to all the circumstances. In this case, construing the words in a sense in which a lay person would understand, the Tribunal found that a lay person would not consider 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’. They noted however, that this is more difficult to assess with online activity and, where a personal social media account is used for work purposes, that might create a connection to work. The alleged act of harassment in this case was the posting of the image by DS rather than BW showing it to the Claimant at work, which could have been regarded as done ‘in the course of employment’ however, this is not how the Claimant has pleaded his case.