Can an employer be vicariously liable for harassment when one employee is offended by another colleague’s social media activity?

In brief: Yes, provided that social media activity was done in the course of employment and meets the test under s.26 of the Equality Act 2010. 

This was the worrying question for employers which lay at the heart of the recent judgment of the Employment Appeal Tribunal (“EAT”) in the case of Forbes v LHR Airport Ltd. 

Before we look at the facts, let’s remind ourselves how claims work under s.26:

“a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

• Violating B's dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:

• The perception of B;
• The other circumstances of the case; and
• Whether it is reasonable for the conduct to have that effect”.

The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation (section 26(5)).

If we also reflect upon how easy it might be for people to become offended by another colleague’s ill-judged and inappropriate social media activity, it is easy to appreciate the potential risks involved.  

Crucially, just as in Mr. Forbes’ case, claims of this kind will often turn on the question of vicarious liability - whether the offending act(s) were done “in the course of employment” - a simple question of fact for the Tribunal to determine from the evidence in any given case and having regard to all the circumstances. When doing so, Tribunals have to give the words “in the course of employment” their ordinary meaning.

Facts

In Forbes v LHR Airport Ltd, ‘Ms S’, a colleague of the claimant, Mr Forbes (F), decided to post an image of a golliwog on her private Facebook page outside of work with the caption, “Let’s see how far he can travel before Facebook takes him off”.  

The image was obviously capable of causing great offence to many people. Mr F was not amongst Ms S’s Facebook ‘friends’ however a mutual colleague, BW, showed the Facebook post to F, F was offended by what he saw and raised a grievance. Ms S was disciplined. She apologised and received a final written warning.  

F nevertheless filed his Employment Tribunal claim for harassment against his employer arguing that it was vicariously liable for the harassment that he felt as caused by Ms S’s actions.  

Employment Tribunal (“ET”) decision

The ET dismissed Mr F’s claims. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, it also found that her act of posting the message on her Facebook page was not an act done ‘in the course of her employment’ and was therefore not one for which the respondent could be liable.  

In reaching that decision, the ET noted that the image had been shared by Ms S privately amongst her friends’ list, that it was not something that she did at work, and F was not on her friends’ list. The ET further concluded that the sharing of the image did not have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for F. 

F appealed. 

Appeal decision

The EAT dismissed the Appeal, agreeing with the ET’s decision but commented that the outcome of this case might well have been different had BW been the target of the harassment complaint (as opposed to Ms S), as his subsequent act of showing the offensive image to F was done in the workplace and might be said to have been done “in the course of employment”.  

However, and fortunately for the employer, that was not the way Mr Forbes put his case.

What does this mean for employers?

This case will no doubt provide some comfort to employers who are concerned about social media misconduct and the potential ramifications for the business where somebody oversteps the mark.  The potential for this to happen in today’s workplace cannot be understated. 

However, even where an act has been carried out ‘in the course of employment’ employers have a ‘reasonable steps defence’ available to them under section 109(4) EqA and so can reduce the risk of vicarious liability by ensuring, as far as possible, that clear steps are taken to prohibit harassment by social media including appropriate training.  

Acas recommends that all organisations have a social media policy setting out guidelines for the use of social media and other online behaviour. In addition, disciplinary rules and procedures should leave employees under no illusion that online misconduct will be treated no differently to ‘ordinary’ misconduct.

If you would like to discuss any aspects of this article please contact the Knights’ Employment Team [email protected]