17 Sep 2019
The EAT has held that employers could avoid being liable for discriminatory acts committed by their employees, if it’s clearly established that the act took place outside of work.
If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.
Forbes v LHR Airports Limited
Under section 109 of the Equality Act 2010, organisations are liable for acts of discrimination and harassment committed by employees in the course of their employment with the company.
For example, if an employee was subjected to racial abuse by their colleagues whilst at work, and they later resign over this abuse, the company could be liable for a claim of discrimination.
This is known as vicarious liability.
It does not matter if the act in question is done without the employer’s knowledge or approval.
That said, a potential defence for employers in this situation is that they took ‘all reasonable steps’ to prevent the act from being committed.
Returning to the earlier example, a potential argument for the employer could be that they’d disciplined the employees in question and had an anti-discrimination and harassment policy in place.
Background to the case
In this case, the claimant was shown by his colleague, BW, an image that had been posted on Facebook by another colleague, S.
The image was a picture of a golliwog, which was accompanied by the caption, ‘let’s see how far he can travel before Facebook takes him off’.
It had originated on S’s private Facebook page and had then been shared with a number of people, including BW, but not the claimant.
The claimant was appalled by the image and raised a formal grievance against S, complaining that racist images were being circulated in the workplace.
The grievance was upheld and, following a disciplinary procedure, S was issued a final written warning.
Following this, the claimant was rostered to work alongside S and raised concerns about this placement. The claimant was then moved to another location without any explanation.
The claimant later brought claims of harassment, victimisation and discrimination on the grounds of race to the employment tribunal (ET).
He claimed that the organisation was vicariously liable for the behaviour of S.
What did the employment tribunal say?
The ET initially dismissed his claim. They ruled that whilst the sharing of the image was capable of giving rise to the offence on racial grounds, the post had been done on S’s private Facebook page and had therefore not taken place ‘during the course of her employment’.
The ET went on to explain that, regardless of this, the employer had taken all reasonable steps to prevent the employee suffering discrimination.
In particular, their policies made it clear this behaviour was unacceptable, they’d upheld the claimant’s grievance, and subjected S to a disciplinary procedure resulting in a final written warning.
The claimant appealed the vicarious liability point to the Employment Appeal Tribunal (EAT), and also disputed that the employer had taken reasonable steps to prevent discrimination.
What did the Employment Appeal Tribunal say?
The EAT dismissed the appeal, agreeing with the reasoning of the ET.
They explained that whether an act is carried out ‘in the course of employment’ is a question of fact for tribunals to consider regarding all circumstances.
Relevant factors would include whether the act was done in or outside work and, if outside work, whether there was a sufficiently close connection with work.
This approach is relatively straightforward when dealing with physical actions or comments, but it’s much more difficult when dealing with online behaviour.
There may be circumstances where a shared image on a Facebook page could be found to be an act done in the course of employment, but it would depend on the specific facts of the individual case.
When applied to this situation, the employee had posted the image on a private account and had not been at work when she’d done so.
Her friendship group were largely non-colleagues.
She wasn’t at work when the image was posted, it hadn’t made reference to the organisation or any of its employees, and S didn’t use any of the employer’s equipment to share the image.
Despite this, the employer treated the conduct of S seriously and given her a final written warning.
In determining if an act was done ‘in the course of employment’, tribunals will first determine what the ‘act’ is.
In this case, it was the posting of the image by S.
There was enough distance between the act and the employment to demonstrate it wasn’t done in the course of employment, meaning the organisation wasn’t liable—in this scenario.
The EAT did note that there might be circumstances where image sharing on social media could be found to be an act done in the course of employment, and therefore count as vicarious liability.
For example, if the image was posted on a Facebook page which was principally maintained for the purposes of communicating with work colleagues.
The EAT also specified that this outcome may have been different if the person who’d shown the image, BW, had been the one who was accused of the harassment, not the organisation.
Employers should therefore always approach the issue of social media misconduct carefully. It’s advisable to maintain a social media policy to outline acceptable conduct in relation to the company
An employee was shown an offensive image posted on a colleague’s Facebook page and raised a grievance. The grievance was upheld and the colleague disciplined but the employee was later made to work alongside the colleague and then transferred to a different location.
The employee decided to take their employer to an employment tribunal on ground of harassment, victimisation and discrimination, claiming they were vicariously liable.The ET dismissed his claim, ruling that the image wasn’t shared during the course of the colleague’s employment and the employer had taken all reasonable steps to prevent discrimination.
Remember to approach social media misconduct carefully and maintain a social media policy to outline acceptable conduct in relation to the company.
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