Vicarious Liability – Discrimination
In this case, a colleague of the Claimant, Ms S, 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”. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Disciplinary action was taken against Ms S and she apologised and received a final written warning. Thereafter, the Claimant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. Following this the Claimant brought an Employment Tribunal claim against LHR Airport Ltd of harassment, victimisation and discrimination.
The Employment Tribunal dismissed the claim and the Claimant appealed to the EAT.
The EAT upheld the Employment Tribunal’s decision on the basis that Ms S putting the image on Facebook was not “in the course of employment”. It was not posted during work time, nor did it mention any colleagues or the employer. The EAT noted that BW’s act of showing the image to F at work could have been regarded as done in the course of employment. However, this was not how F’s claim was put, and so the focus had to be on S’s conduct.
The EAT, in its decision noted that it is not possible or even desirable to lay down any hard and fast guidance as to when such conduct should incur employer liability, especially as the use of social media platforms is increasing. Just as is the case with the physical work environment, whether something is done in the course of employment when done in the virtual landscape will be a question of fact for the tribunal in each case, having regard to all the circumstances.
There may be many circumstances in which sharing an image on Facebook could be found to be done in the course of employment, such as where the Facebook page is solely or principally used for work purposes. Just because the employer considers it appropriate to take action against employees for the conduct does not mean that the conduct in question is necessarily done in the course of employment. It is important to ensure that you have a right under your disciplinary policy to take action against an employee for conduct outside of work where appropriate.
It is worth noting that the EAT were approving of the employer’s actions in this case for the steps they took with regards to the complaint. An employer can protect itself from vicarious liability for the acts of an employee by demonstrating that they have taken all reasonable steps to prevent it.
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