Forbes vs LHR Airport Ltd (2019) IRLR 890 EAT

Summary
On the specific facts of this case, the Employment Appeal Tribunal held that the employer was not vicariously liable for the Facebook post of an employee.

Background
Ms Stevens, a security officer for LHR, posted an image of a golliwog on her Facebook account. The image was accompanied by the message: “Let’s see how far he can travel before Facebook takes him off.”

The image was shared with Ms Stevens’ Facebook friends, one of whom was a colleague (BW). Mr Forbes, another colleague, was not among Ms Stevens’ Facebook friends and so did not initially see the Facebook post.

However, BW later showed the image to Mr Forbes, who complained to his line manager that racist images were being circulated in the workplace. Mr Forbes’ grievance was upheld and Ms Stevens was given a final written warning for breaching the employer’s dignity at work policy.

Employment Tribunal claim
Mr Forbes brought a racial harassment claim against his employer. The employment tribunal rejected Mr Forbes’ harassment claim on the basis that:

  • Ms Stevens had not been acting in the course of her employment. She was not at work when she added the Facebook post, made no reference to any employees in the post, and did not use the employer’s equipment to add the post.
  • Sharing the image did not have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Forbes. Ms Stevens shared the image privately among her Facebook friends. This was not something that she did at work and Mr Forbes was not on her list of Facebook friends.
  • The employer took reasonable steps to prevent the discriminatory act by having policies that make clear what it considers unacceptable behaviour and there was evidence that it takes discriminatory acts seriously. For example, the employer took disciplinary action against Ms Stevens.

Employment Appeal tribunal
The EAT considered whether the employee had acted ‘in the course of her employment’ and decided not.

Implications
Although the EAT rejected the appeal they stressed that there will be many circumstances in which the sharing of an image on a Facebook page is an act done ‘in the course of employment’. For example, a Facebook page could be solely or principally maintained for the purposes of communicating with work colleagues or routinely used for raising work-related matters. In those circumstances, an ostensibly private act could be regarded as sufficiently closely connected to the workplace to render it an act done ‘in the course of employment’.