Social media has brought many benefits to local businesses, including new marketing opportunities, increased customer engagement and brand development. However, social media can also be a minefield for employers, especially when it comes to dealing with how employees use their social media profiles both inside and outside the workplace.
In the case of Forbes v LHR Airport Ltd the Employment Appeal Tribunal (EAT) in England considered whether an offensive post made on Facebook was made by an employee “in the course of their employment” and if so, whether the employer was liable.
Mr Forbes, the Claimant, was employed by London Heathrow Airport as a security guard. A colleague of the Claimant, Ms Stevens, posted an image of a golliwog on her Facebook profile with the caption “Let’s see how far he can travel before Facebook takes him off”.
The image was posted by Ms Stevens outside of working hours on her personal mobile device. Ms Stevens’ Facebook profile was private which meant only her Facebook friends could view the post. The Claimant and Ms Stevens were not friends on Facebook.
A colleague of the Claimant showed him Ms Stevens’ post during working hours and the Claimant complained to his employer that the post amounted to discrimination and harassment on the grounds of race.
The employer did not take any action against Ms Stevens’ in the first instance and the Claimant raised a grievance complaining that disciplinary action should have been taken given the nature of the image.
The Claimant’s grievance was upheld and Ms Stevens was suspended. Following a disciplinary process Ms Stevens apologised and was given a final written warning.
The Claimant was later scheduled to work with Ms Stevens and he raised concerns about this with his employer. The Claimant was subsequently moved to work in a different location without an explanation. As a result, the Claimant complained that he was being victimised as a result of raising a grievance against Ms Stevens.
The Claimant brought claims in the Employment Tribunal for race discrimination, victimisation and harassment. The Tribunal rejected the claims and held that the Facebook post was made outside of work, not within Ms Stevens’ course of employment, on a private device and was only shared with her Facebook friends. The Tribunal also held that Ms Stevens had no reference to her employer on her social media profile and as a result, the image was not in the course of Ms Stevens’ employment. The Claimant’s employer was therefore not liable.
The Claimant appeal to the Employment Appeal Tribunal and the EAT dismissed his appeal. The EAT found that the alleged harassment was not connected to work.
So what can employers learn from this case?
Firstly, employers can breathe a sigh of relief that they will not always be held liable for the actions of their employees outside of the workplace. However, employers should be mindful that the outcome of this decision could have been very different.
Had the image been shared on a work device, on a personal device but during working hours, or on an account linked to or referencing the employer, it is likely that a Tribunal would have found it more difficult to differentiate between what is considered “in the course of employment”.
Secondly, employers need to tread carefully when it comes to dealing with complaints relating to offensive posts on social media. In this case, the Claimant, not the employee who posted the offensive image, was moved to a different location. In a case where an offensive social media post was considered to be in the course of employment, this action could be considered an act of victimisation.
Amy Barr is a solicitor at Worthingtons Solicitors in Belfast, specialising in employment law and regularly provides ongoing advice and assistance to employers on a range of employment law matters. For advice on workplace issues or the drafting of social media and Dignity at Work policies, please contact Amy on 028 90434015 or [email protected].
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