by Julie Bann
The Employment Appeal Tribunal (‘EAT’) determined in Forbes v LHR Airport Ltd (‘LHRA’) that this depends on the facts. In this case an employee, S, posted a racially offensive image of a golliwog on a private Facebook page with the caption ‘Let’s see how far he can travel before Facebook takes him off’. The post was shared around S’s friends who included some work colleagues. One of those work colleagues, B, showed C the post. Then C raised a grievance and S was disciplined and offered an apology. Some time later, C was moved to work alongside S. C complained and was moved without explanation to another location. C brought a claim of harassment.
The Employment Tribunal (‘ET’) dismissed the claim, finding that the post was not in the course of employment and in any event it was not harassment because, while the image was offensive, it was not S’s purpose to cause harassment and S apologised so it was not reasonable for the post to have that effect. The EAT dismissed the appeal. It found that whether conduct was in the course of employment was a question of fact and was common sense, in other words what an ordinary person would understand to mean ‘in the course of employment’.
It was reasonable to take into account the fact that this Facebook post was not done in work time or using work equipment and it was posted in a private group. While there were work colleagues in that group, S did not specifically mention LHRA or colleagues in the post, so there was no connection with work. In those circumstances, an ordinary person would not believe that a post to a private Facebook account, which was unrelated to work, which could be seen by a range of friends, mostly non work-based, was an act done in the course of employment. It is important to note that the only act of harassment relied on was the posting of the image by S and not B’s decision to show C the post. The EAT also found that it was entirely appropriate to take account of S’s apology when considering if the act could constitute harassment. The ET was obliged to take into account all other circumstances of the case, which in this case meant the timely apology and the remorse expressed by S.
What can we take from this?
- Many employers, faced with this type of situation, would feel that they should investigate S’s conduct under their disciplinary policy. The EAT held that the fact that an employer did investigate and discipline the employee did not mean that the conduct would be seen to be done in the course of employment. Employers can consider disciplinary sanctions for conduct outside work if their policies allow.
- There could have been a different outcome if the post was created using a work mobile or computer during working hours or if the Facebook page was either not private or was a private group for colleagues of LHRA, so that there was more of a connection with the company.
- With social media being the preferred means of communication between friends and often colleagues, having a relevant and up-to-date social media and IT policy, clearly setting out what is acceptable behaviour and what will not be tolerated, is vital.
- If faced with similar facts, it is important (as part of a grievance investigation) to ascertain whether there is a link between the conduct and the workplace. The outcome or any sanction has to take into account all the facts of the case, including the response of the perpetrator.
- Review your internal training and policies on bullying and harassment. It is essential that your policies and any staff training on your policies adequately cover all methods of communication used internally.
- Many staff teams set up WhatsApp or similar groups as a simple means for discussions. There is often a misguided perception that such chats are informal and so things are posted that would not be said in a meeting or even an email. Be clear as to what is acceptable and what will not be tolerated.
The outcome in this case may have been different if the C had argued that B’s act of showing him the offensive post in the workplace was the act of harassment. The fact an employee was not the originator of offensive material does not matter if that employee then re-posts or forwards the post to a work colleague.
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Please note this paper is intended to provide general information and knowledge about legal developments and topics which may be of interest to readers. It is not a comprehensive analysis of law nor does it provide specific legal advice. Advice on the specific circumstances of a matter should be sought.