Not in the course of employment

 

Labour & European Law Review Weekly Issue 638 18 September 2019

Although posting an offensive image on Facebook could constitute an act done “in the course of employment”, the Employment Appeal Tribunal (EAT) held in Forbes v LHR Airport Ltd that when an image is posted on the employee’s own computer at home, did not refer to their employer or any employees, it could not be said to be done in the course of employment.

Basic facts

A colleague of Mr Forbes, Ms Stevens, posted an image of a golliwog on her private Facebook page with the caption, “Let’s see how far he can travel before Facebook takes him off”, which she shared with her list of Facebook friends. This did not include Mr Forbes but did include another colleague, BW, who showed the Facebook post to him.

He complained to his line manager that racist images were being circulated in the workplace. After an investigation, it was decided that no further action would be taken as Ms Stevens apologised and agreed to mediation.

Mr Forbes then lodged a grievance which resulted in Ms Stevens being given a final written warning. A short time after this he was posted to work alongside her. After he complained, he was moved to another location without any explanation. He lodged tribunal proceedings alleging harassment, victimisation and discrimination. 

Tribunal decision

The tribunal dismissed his claims on the basis that Ms Stevens had not shared the offensive image “in the course of [her] employment” within section 109 of the Equality Act 2010. She was not at work when she posted it, she shared it privately among her own list of friends which did not include Mr Forbes, her employer was not mentioned, nor were any of their employees and finally she had used her own computer.

It was clear that the employer had taken all reasonable steps to prevent their employees from carrying out discriminatory acts in that they had policies making clear that this kind of behaviour was unacceptable, which they brought to the attention of their employees. They were not therefore vicariously liable for her actions.

EAT decision

Dismissing the appeal, the EAT held that the question of whether conduct can be said to be “in the course of employment” within the meaning of Section 109 of the Equality Act was very much one of fact to be determined by the tribunal having regard to all the relevant circumstances.

As the words “in the course of employment” should be taken to have their ordinary and natural meaning, as understood by a lay person, they would not consider that sharing an image on a private, non-work-related Facebook page with a list of friends that largely did not include work colleagues, was an act done in the course of employment. Although Mr Forbes had been shown the image at work, it could not be said to have been “shared” among work colleagues.

That is not to say that sharing an image on Facebook could not constitute an act done in the course of employment. For instance, if it was posted on a page maintained mainly for the purposes of communicating with work colleagues or routinely used for raising work-related matters.

Although the employer had taken action against Ms Stevens, the EAT held that there was no automatic correlation between conduct outside of work which an employer considered to be unacceptable, and the statutory test of an act being done in the course of employment.

Finally, although it could be argued that sharing the image at work with Mr Forbes was in the course of employment, BW was not cited on the ET1 form as the primary harasser. Instead the clear target was Ms Stevens.

Comment 

This case shows the importance of naming alleged harassers as respondents to employment tribunal claims. Had Mr Forbes named BW as a respondent in the ET1 claim form, it is very likely that the tribunal would have found the racist image was shared during the course of employment because Mr Forbes was shown the image during work time and a discrimination claim (harassment in this case) against BW could have succeeded. A claim against the employer could also have succeeded subject to any “reasonable steps defence” advanced by the employer.

This case also serves as a warning to employees who share discriminatory, in this case, racist postings on social media as the employer will inevitably take disciplinary action against the employee who shared the image, whether it was shared in the course of employment or not. In this case, Ms Stevens was issued with a final written warning.