Can an employer be responsible for postings on an employee’s personal social media account?

Not in the case of Forbes v LHR Airport Limited. The employer was not legally responsible for the sharing of an offensive post by an employee.

Legal background

If an act has been committed ‘in the course of employment’, an employer can find themselves vicariously liable (i.e. held responsible) for the actions of the employee.

It can be difficult to establish a link between the act done and an employee’s employment. There have been many cases examining whether alleged acts can be said to be ‘in the course of employment’. These range from informal after-work gatherings, to rest breaks, to employer-organised events. No two situations are the same and each case will depend on the facts of the matter

What happened?

Mr Forbes worked as a security officer. One of his colleagues shared a racially offensive image on his Facebook page alongside the message ‘Let’s see how far he can travel before Facebook takes him off.’ Mr Forbes couldn’t see the post directly but when another colleague  shared it with him at work, Mr Forbes was shocked and appalled. He complained to his line manager before raising it as a formal grievance.

The grievance was upheld and following a disciplinary investigation, his colleague received a final written warning for conduct that breached the employer’s Dignity at Work Policy.

When Mr Forbes was posted to work with  the colleague, he complained and shortly after, he was moved to another  location. Mr Forbes felt he was being victimised and discriminated against because he had complained about the Facebook image page and brought claims of harassment, victimisation and race discrimination.

What happened at Tribunal?

The Employment Tribunal dismissed his claims on the basis that his colleague had  not acted ‘in the course of her employment’. At the time he shared the post she was not in work and there was no reference to the employer or any of its employees, no colleagues were mentioned in the sharing of the post and she did not use the employer’s equipment to share the post. Further, the employer had taken reasonable steps to prevent any discrimination (including enforcing its own policies, which prohibited discriminatory posts).

Mr Forbes appealed.

What did the Employment Appeal Tribunal decide?

The EAT dismissed the  appeal. The judgment confirms that the words ‘in the course of employment’ are to be understood in their ordinary and natural sense. In this instance, a normal person would not consider that the sharing of an image on a private non-work-related Facebook page, with a list of friends that largely did not include work colleagues, was an act done ‘in the course of employment’.

“It is [not] possible or even desirable to lay down any hard and fast guidance in respect of these matters, especially as the extent to which social media platforms are used continues to increase. 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. No clear boundary as to when such conduct will be in the course of employment can be defined.”

What can employers learn?

This case does not mean that social media postings can never be made ‘in the course of employment’. The Tribunal will consider all of the relevant facts and circumstances in a case before deciding if the connection to the employment is sufficiently strong.

The EAT has previously held that discriminatory comments made by colleagues via Facebook are capable of forming a continuing act of discrimination.

Employers cannot prohibit employees from accessing or using social media sites in their own time, using their own equipment, but they can have a social media policy or include social media issues in their handbook.

These policies can make it clear that employees must not engage in any online activity, which may damage the employer’s business or reputation, or post material, which is offensive, abusive or derogatory. Such rules should apply to both social media usage inside and outside work, but whether an employer can enforce such prohibitions, particularly outside the workplace, will depend on the facts of any given case.

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