An employer is only vicariously liable for acts of employees if those acts are done "in the course of employment". In LHR Airport Ltd v Forbes the EAT considered whether a Facebook post by an employee was done "in the course of employment" and concluded that it was not.
One of the claimant's colleagues, Ms Stevens, posted an image of a golliwog on Facebook. Another colleague, who was one of Ms Stevens' Facebook friends, showed the claimant the image. The claimant raised a grievance, which the employer upheld, and Ms Stevens was disciplined. He then brought a harassment claim but it failed; the tribunal found that the offensive post was not done "in the course of employment", so the employer could not be vicariously liable for it. The claimant appealed.
The EAT upheld the tribunal's decision. Whether an act occurs "in the course of employment" is fact specific and a question for the tribunal. It is not always easy to assess if there is a sufficient nexus between an employee's personal social media account and their employment – this may depend on whether the account is used for work-related purposes. However, it is neither possible nor desirable to set out hard and fast guidance about when the boundary between what is personal and what is work is crossed. The tribunal was entitled to reach the decision it had because:
- The employee was not at work when the image was posted, her Facebook friends were generally not work colleagues and the post did not refer to the employer;
- Although the claimant was at work when he was shown the image, the relevant time for deciding whether the act was in the course of employment was when it was posted;
- The employee's Facebook page was not solely or principally maintained for work purposes – the position may have been different if it had; and
- It did not follow from the fact that the employer had treated the post as a disciplinary matter that it was done in the course of employment – an employer may choose to treat many forms of misconduct that occur outside work as disciplinary matters, without it being suggested that the misconduct therefore occurs in the course of employment.
On an obiter basis, the EAT agreed with the tribunal that Ms Stevens' apology to the claimant was relevant to whether it was reasonable to regard the post as creating an intimidating or hostile work environment for him. The employer's prompt disciplinary action against Ms Stevens also meant that it had taken all reasonable steps to prevent the harassment, even though it did not appear to have publicised, audited or monitored its equality policies.
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