The posting of a discriminatory image on a personal Facebook page which caused offense to a work colleague was not done ‘in the course of employment’, the EAT has held. The employer was not vicariously liable for the employee’s actions as there was a lack of a sufficient link between the posting of the image and the employee’s employment.  

Summary

An act committed by an employee during the course of their employment is treated as if done by the employer. It is, however, a defense for an employer to show that they took all reasonable steps to prevent the employee from doing that thing.  Whether something is done during the course of employment is a question of fact and dependant on the circumstances.

Improper and inappropriate Internet use by employees whether at work or on their own time carries various risks for a business. Misuse of social media or the Internet during the course of employment may amount to misconduct amounting to a potentially fair reason for dismissal. 

In the case of Forbes v LHR Airport Ltd the Claimant worked as a security officer and he became aware of an image which had been posted by a colleague on Facebook, which was shown to him by another colleague. The Claimant was offended by the image and raised a formal grievance, which was upheld and resulted in the colleague receiving a final written warning for breaching the Dignity at Work Policy. 

The Claimant and his colleague were then posted to work together. The Claimant brought claims of harassment, victimisation, and discrimination which the tribunal dismissed on the basis that the colleague had not acted ‘in the course of her employment’. At the time the image was shared, she was not in work, made no reference to the employer or any of its employees, other colleagues were not mentioned in the post and she did not use any of the employer’s devices to share the post. Importantly, the employer had taken reasonable steps to prevent discrimination and had implemented its own policy against the colleague. 

The EAT dismissed the claimant’s appeal, finding that the words ‘in the course of employment’ are to be understood in their ordinary and natural sense and a layperson would not consider that the sharing of an image on a private non-work related Facebook page, with a list of friends that were predominantly outside of the individual’s work colleagues, was an act done in the course of employment. 

Recommendations for Employers 

The EAT noted that it was not possible to lay down any hard and fast guidance as to when conduct of this type should incur employer liability. Whether something is done in the course of employment in the virtual world is a question of fact for a tribunal in each case, having regard to all the circumstances.  It is therefore recommended best practice for employers to: 

  • Adopt a social media policy to encourage appropriate employee use of social media;
  • Use the policy to prohibit employees from using social media in ways that could damage the business or post material which is offensive, abusive or derogatory; and 
  • Provide training to all staff on the appropriate use of social media in and out of work and monitor for compliance.  

This article was co-written by:

Tracey Robb

CEO
Trivium London Consulting
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Tracey Robb

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Jonathan Naylor

Partner
SHOOSMITHS LLP
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