As an employer, it is often difficult to tell where the boundaries lie regarding the implications of your employee’s actions on social media. A recent case heard at the Employment Appeal Tribunal (EAT) held that, in Forbes v LHR Airport Limited, the posting of an offensive image on Facebook was not carried out ‘in the course of employment’ and therefore the case was dismissed.
Forbes v LHR Airport Limited (2019)
The Claimant in this case was a security officer. Their colleague, DS, posted a discriminatory image of a golliwog with the caption, “Let’s see how far he can travel before Facebook takes him off” on Facebook. One of her colleagues, who was a Facebook friend, showed it to the Claimant, who was not. The Claimant raised a formal grievance and DS was disciplined.
When he was rostered to work alongside DS, the Claimant complained and was subsequently moved to another location without explanation. At the Tribunal, the Claimant made claims of victimization, harassment and discrimination on the grounds of race. However, the Tribunal dismissed these claims as they held that DS had not acted in the course of her employment as she had not posted the image while at work, or on a work computer. Also, because the Claimant was not DS’s Facebook friend and the image was shared amongst a private group with no reference to the employer, it was viewed to have no relation to DS’s employment or the Claimant.
Is an issue with social media the problem of the employer?
In this case, the Claimant appealed this ruling at the EAT but it was dismissed, and the Tribunal’s ruling was upheld. Despite this, whether something is done in the course of employment is a question of fact for the tribunal in each case, depending on the individual circumstances. This is much more difficult to assess with online activity because, even when social media is being used for personal purposes, there is the possibility of the actions being connected to work.
It is important that employers have in place policies relating to social media use during work hours, and that employers are reminded that views expressed online outside of working times may have an impact both on their employment, and the business’s reputation.