July 19, 2019
Discrimination on social media – is the employer responsible?
Employers can find themselves responsible for acts of discrimination and harassment by their employees, where the act has been committed "in the course of employment". In the recent case of Forbes v LHR Airport Ltd 2019 the Employment Appeal Tribunal (EAT) held that an employee who shared a racially offensive post on their personal Facebook was not carried out in the course of their employment and therefore the employer was not legally responsible for their actions.
The Claimant's colleague posted an image of a golliwog on her private Facebook account, not linked to her employer or any of her colleagues. The Claimant was not friends with the colleague on Facebook but was shown the image by another colleague. The Claimant raised a grievance to his employers for harassment, victimisation and discrimination. The colleague received a sanction of a final written warning and apologised for any offense caused.
The Claimant pursued a claim in the Employment Tribunal for harassment, victimisation and discrimination. The complaint was dismissed by the Employment Tribunal. Whilst it accepted that the image was capable of giving rise to offence on racial grounds, the act of posting the image on their own personal Facebook account was not considered to have been done during the course of her employment, therefore the employer could not be responsible. The EAT upheld the Tribunal's decision commenting that when considering whether something had been done "in the course of employment" numerous factors needed to be considered, for example, was the act done at work or outside of work.
What to take from this case:
Despite the decision in this case, employers will still need to be aware that conduct outside of work may still be classed as during the course of employment and will depend on the individual facts. Common examples of this is if the conduct occurred at a works social event or whatsapp groups between multiple colleagues.