Sharing Facebook picture and impact on employment

What is vicarious liability?

In certain circumstances, an employer can be held liable for the legal wrongs committed by an employee where there is a sufficiently close connection with the wrongdoing, such that it can be regarded as carried out in the course of employment.

This is known as ‘vicarious liability’ and means that an employer can be held liable and have to pay compensation for those liabilities, even where the employer may have actually done nothing wrong.

Background

Forbes worked for LHR Airport Ltd as a security officer. One of his colleagues, S, shared an image of a golliwog on her Facebook page, accompanied by the message ‘Let’s see how far he can travel before Facebook takes him off’. The image was shared with S’s Facebook friends, including a colleague, BW, but not F. BW later showed the image on S’s Facebook page to F, who complained to his line manager. This escalated into a formal grievance, which the employer upheld, and S was subject to a disciplinary investigation. She appeared contrite during that investigation when the offensive nature of the image was explained. S offered an apology and received a final written warning. When F was later posted to work alongside S, he complained and was thereupon moved to another location without explanation. F went off sick for a period and eventually brought a claim of harassment, among other things, against LHR Airport Ltd.

Employment Tribunal

The Employment tribunal dismissed Mr Forbes’ claims of harassment, victimisation and discrimination on the grounds of race, holding that S had not acted in the course of her employment. She had not posted the image while at work, or on a work computer, it was shared amongst a private group which did not include Mr Forbes, and it made no reference to her employer.

Mr Forbes appealed to the EAT.

Employment Appeal Tribunal (EAT)

The EAT dismissed Mr Forbes’ appeal. It was held that although the image was shared with a Facebook friend who was a work colleague, the alleged act of harassment was the actual posting the image on a private Facebook account (not showing the image to S) and therefore, it was held that this was not done in the course of employment.

Comment

With the increasing use of social media and blur between personal and work life, it is becoming a more difficult area to draw a line between what may and may not be ‘in the course of employment’. The EAT were asked in this case to provide some guidance but indicated that it was not possible nor desirable to do so and, indicated that each case will turn on the facts before the particular tribunal, having regard to all the circumstances.
Helpfully for employers, the EAT did note that even though actions may not be ‘in the course of employment’ it would still be published to employers to take disciplinary action against employees, depending on policies, for inappropriate action outside of work.

This case reinforces the need for employers to review their policies and procedures and ensure that they are up to date, such as, making clear when social media behaviour outside of work would not be acceptable and when action may be taken. It is equally important to ensure that employees are aware of and trained in such policies and how it may affect them.

This content is correct at time of publication