Can an employer be liable for its employees’ discriminatory Facebook posts?
In Forbes v LHR Airport Limited the EAT considered whether a discriminatory Facebook post was made by an employee “in the course of their employment”. If so, the employer could be liable for it.
Mr Forbes worked for London Heathrow Airport (LHA). One of his colleagues shared a racist image on her own Facebook page outside her normal working hours. That image was subsequently shown to Mr Forbes by a mutual colleague who had seen the post and it caused Mr Forbes offence.
Disciplinary proceedings were ultimately issued against the employee who made the discriminatory post, with a final written warning being issued. Subsequently, when Mr Forbes and the employee were scheduled to work together, he complained to LHA and was as a result moved to work at a different location, without explanation. Mr Forbes later brought claims of harassment and race discrimination against his employer relying, in part, on the discriminatory Facebook post.
The original Tribunal determined the Facebook posts were not done ‘in the course of employment’ and therefore dismissed the claim. The image was posted privately, not on the LHA’s computer and was circulated only amongst the employee’s friends, which did not include Mr Forbes. Furthermore, the post made no mention of LHA.
The EAT dismissed Mr Forbes’ appeal. Sharing an image on Facebook could, dependent on the facts of the case, be found to be done in the course of employment. The EAT gave the example where the Facebook page is solely or principally used for the purpose of work, however that was not true of the present case.
Helpfully, the EAT confirmed that where an employer considers it appropriate to take action against employees for making discriminatory posts, that in itself will not mean that the conduct complained of is done in the course of employment. The EAT gave the example of an employee chanting racist slogans at a football match: that could, in no way, be seen as being done in the course of an employee’s employment but the employer may still wish to address the behaviour with the employee due to reputational issues.
Howes Percival Employment Law expert Hannah Ball commented:
“This decision offers useful guidance for employers and is a reminder that they can, dependent on the facts, be held liable for the actions of their employees including posts made on social media. The EAT’s comments, about the disciplinary action taken by the employer not being determinative of the issue, are particularly helpful.”
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