Under Section 109(1) of the Equality Act 2010, anything done by a person in the course of their employment must be treated as also done by the employer. That is to say employers generally bear legal liability for misdeeds committed by their employees in the context of their work. Whether or not the conduct complained of did occur 'in the course of employment' is a question for the fact-finding tribunal to decide, having regard to all the circumstances and based on the everyday meaning of the phrase.
A recent case (Forbes v LHR Airport Limited) saw a company cleared of liability for an offensive image posted by one of its employees on her private Facebook page – because her action was not deemed to have taken place in the course of employment.
The employee had posted an image of a golliwog with the caption 'Let's see how far he can travel before Facebook takes him off'. She shared the image with a work colleague, who was also one of her Facebook friends, who showed it to a security officer who took deep offence, considering it to be racist. He complained to his line manager that racist images were being circulated in the workplace.
An initial investigation by the line manager resulted in an apology from the woman who posted the image. However, that did not satisfy the security officer. He lodged a formal grievance and the woman was subsequently issued with a final written warning.
When the security officer was later assigned to work alongside the woman – even though his grievance against her had been upheld – he raised a concern with his union representative. He was then moved to work at another location without any explanation. This resulted in him feeling that he had been persecuted for the protected act of reporting the image and he lodged Employment Tribunal (ET) proceedings, alleging harassment, victimisation and discrimination.
The ET dismissed his claims, finding that the employee had not posted the offending image in the course of her employment. She was not at work at the time and had not used company equipment to place the image on her private Facebook profile. The security officer was not one of her Facebook friends and had not been shown the image by the employee concerned. Furthermore, the post had made no reference at all to the company or any of its employees.
The ET accepted that the image was offensive and had caused real distress to the security officer. However, it concluded that, given the woman's apology, it was not reasonable for the sharing of the post to have the effect upon him that it did. It found that the company had also taken reasonable steps to prevent discriminatory conduct amongst its staff.
In rejecting the security officer's challenge to that decision, the Employment Appeal Tribunal found that the mere fact that the image complained of had circulated in the office did not render the woman's act in posting it as being in the course of her employment.
While this case ended in a favourable outcome for the employer, it serves as an effective reminder of the importance of having in place an equality and diversity policy and a social media policy and ensuring these are understood and enforced when necessary.