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Offensive images on Facebook

14 August 2019

The Employment Appeal Tribunal (“the EAT”) has held in Forbes -v- LHR Airport Limited (“the Company”) that the posting of an offensive image on Facebook was not carried out in the course of employment and therefore the Company were not liable for the employee’s act.

Mr Forbes worked for LHR Airport Limited (“the Company”).A colleague of his, Ms Stevens, posted an image on her private Facebook account of a golliwog with the phrase, “Let’s see how far he can travel before Facebook takes him off”. The image was accessible to all of Ms Stevens’ Facebook friends, including another colleague of both Mr Forbes and Ms Stevens. Ms Stevens did not, however, have Mr Forbes listed as one of her Facebook friends.

The following day, the other colleague showed Mr Forbes the image that Ms Stevens had posted. Mr Forbes was shocked and appalled by the image and complained to his line manager that racist images were being circulated in the workplace. The matter was investigated informally and Ms Stevens stated that she posted the image because it reminded her of a childhood memory about Robertson’s Jam. The Company informed Mr Forbes that no further action would be taken against Ms Stevens unless a formal complaint was made. Mr Forbes was not happy with this so raised a formal grievance which was upheld by the Company. Ms Stevens was disciplined and received a final written warning for conduct which was considered to be in breach of the Company’s dignity at work policy. She also offered an apology to Mr Forbes. A few weeks later, Ms Stevens was posted to work alongside Mr Forbes but Mr Forbes raised a concern about this arrangement. The Company therefore moved Mr Forbes to another location. This upset Mr Forbes as he felt that he was being victimised and discriminated against as he had carried out a protected act by complaining about the Facebook image. He therefore bought claims in the Employment Tribunal (“the ET”) alleging harassment, victimisation and discrimination.

The ET found that Ms Stevens had shared an image that was capable of giving rise to offence on racial original grounds, but it had not been done in the course of her employment. Ms Stevens had shared the image on her private account outside of working hours and Mr Forbes was not her friends list. Furthermore, no one on Ms Stevens’ friends list had made a complaint to the Company about the image. Ms Stevens had also offered an apology. The ET held that it was satisfied that the image had not caused Mr Forbes to feel offended. The ET went onto consider whether the Company had taken all reasonable steps to prevent Ms Stevens from doing a discriminatory act and held that the matter had been taken seriously as disciplinary action was taken against her. With regards to the victimisation claim, the ET held that the decision to move Mr Forbes to a different location to Ms Stevens was due to a restriction being in place for both of them not to work together. The person making the decision did not know of the reasons why the restriction was in place. The ET therefore dismissed all Mr Forbes’ claims.

Mr Forbes appealed to the EAT but the EAT upheld the ET’s decision citing that “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 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 work colleagues, was an act done in the course of employment.” The ET had therefore not erred in its decision.

Comment

This case demonstrates that the posting of an offensive image on an employee’s personal Facebook page will not always be held to be done in the course of employment. However, such cases will be determined on their facts and it is a useful reminder for employers that there is a risk that an employee’s act outside of work can render the employer vicariously liable for such conduct. In this case, the Company took the right approach by taking Mr Forbes’ complaint seriously and taking appropriate disciplinary action against Ms Stevens, which enabled it to defend Mr Forbes’ claims.

By Emily Calfe

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