Employer not liable for harassment when employee shared racially offensive Facebook post

An employee who posted a racially offensive image on Facebook was not acting in the course of employment. She was not at work at the time she posted the image, the post did not mention the employer or any colleagues and she had not used work equipment to share the image. Therefore, her employer was not liable for harassment. Whether an employee is acting in the course of employment will depend on the facts of each case. There will need to be some connection between the social media account and the employer or a group of the employee’s colleagues. 

Employee posts racially offensive image on Facebook  

Ms Stevens posted an image of a golliwog on her private Facebook page with the caption “Let’s see how far he can travel before Facebook takes him off”. One of Ms Stevens’ colleagues, BW, was her friend on Facebook. BW showed the post to Mr Forbes. Mr Forbes raised a grievance complaining of harassment by Ms Stevens. The employer upheld the grievance and gave Ms Stevens a final written warning. Ms Stevens apologised. 

Subsequently Mr Forbes was rostered to work alongside Ms Stevens. When he complained, his employer moved him to another location.  

Employment tribunal rejects harassment claim: employee not acting in the course of employment

Mr Forbes brought a tribunal claim against his employer, including a claim for harassment. The employment tribunal rejected his claims.  

In order for his employer to be liable, Mr Forbes had to show that Ms Stevens was acting in the course of her employment. The employment tribunal ruled that she had not been acting in the course of her employment when she posted the image. She was not at work at the time she posted the image, the post did not mention the employer or any colleagues and she had not used work equipment to share the image. 

The employment tribunal also ruled that sharing the image did not amount to harassment in any event. The image was offensive and caused offence to Mr Forbes and so could potentially amount to harassment. However, Ms Stevens had not intended to cause offence and as she had been willing to apologise it was not reasonable for her conduct to have caused him offence.  

Mr Forbes appealed.

Employment Appeal Tribunal rejects employee’s appeal

The Employment Appeal Tribunal rejected Mr Forbes' appeal. The employment tribunal had been entitled to find that Ms Stevens had not been acting in the course of her employment. The words “in the course of employment” must be understood as a lay person would understand them. A lay person would not consider that sharing 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 fact that BW later showed the image to Mr Forbes in the office was not relevant to whether Ms Stevens was acting in the course of employment when she shared the image on Facebook. 

Likewise, the fact that her employer disciplined Ms Stevens for her conduct did not mean her conduct was in the course of employment. Employers are entitled to take action in respect of unacceptable conduct outside of work.    

The Employment Appeal Tribunal also agreed with the employment tribunal that sharing the image did not amount to harassment in any event. 

Implications

This case is not saying that an employee who posts on social media will never be acting in the course of employment. Each case will depend on its own facts. Relevant factors include whether the employee was acting at work or outside work. If outside work, was there nevertheless a sufficient connection with work to make it in the course of employment? An employee who uses a personal social media account for work purposes may well be acting in the course of employment, particularly if a group of colleagues, customers or business contacts are friends or contacts on the social media account or if the account mentions the employer.  

Employers have a defence if they can show they took all reasonable steps to prevent harassment occurring. They should make sure they have a social media, anti-harassment and disciplinary policies which prohibit this type of behaviour. They should also discipline employees found to be in breach. 

Forbes v LHR Airport Limited