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In the age of social media, it is increasingly easy for the line between personal and professional life to become blurred.
Where an employee makes an offensive post on an apparently private social media account, you would be forgiven for assuming that it is not the employer’s responsibility and it cannot be held liable for any wrongdoing. However, employers can be held liable under the Equality Act 2010 for any acts that are deemed to have been done ‘in the course of employment’. This is a very fact-specific question so, depending on the circumstances, the personal social media activity of careless employees may well result in liability for an employer. This was the issue considered in the recent case of Forbes v LHR Airport in relation to the sharing of a racially offensive image on Facebook.
Mr Forbes worked as a security officer for LHR Airport Ltd. One of his colleagues, Ms Stevens, shared an image of a golliwog on her Facebook page with the message “let’s see how far he can travel before Facebook takes him off” (Ms Stevens’s eventual explanation was that she was not trying to offend, but was raising a point about Facebook’s moderating policy). The post was seen by a colleague, who then showed the image to Mr Forbes, which lead him to complain to his line manager.
Following a disciplinary investigation, Ms Stevens received a final written warning and she offered an apology for her actions. Mr Forbes was, however, later posted to work alongside Ms Stevens. When he complained about this, he was moved to another location without explanation. He then went off sick for a period.
Mr Forbes brought a claim against his employer for discrimination relating to racial harassment under the Equality Act 2010, on the basis the company were liable for the actions of its employees. This was dismissed in the Employment Tribunal (ET), which found that the sharing of the post was not done ‘in the course of employment’. The ET considered it relevant that:
Mr Forbes appealed to the Employment Appeal Tribunal (EAT), but this appeal was dismissed. The EAT held that an image shared on a private non-work-related Facebook page, with a list of friends that largely did not include work colleagues, was not an act done ‘in the course of employment’.
It would be wrong for employers to think that this case absolves them of any liability for employee social media activity. Had the facts been slightly different, with a more tangible connection between the social media post and the employer, the employer could have been liable. For example, if the employer had been named in the post or a greater number of employees had seen the post, or even if the post had been shared during work hours or on a work device, the outcome could have been different. Employers must therefore be cautious when handling complaints relating to social media and seek advice if there is any uncertainty.