Was an employer vicariously liable for workplace harassment via social media?

EAT provides useful guidance on a developing area of potential liability for employers.

Employers can be vicariously liable for the actions of employees under the Equality Act 2010 ('EqA'10'). The issue of vicarious liability for losses caused by the wrongdoing of an employee is often tested by the courts and tribunals, with decisions tending to show that vicarious liability is heavily dependent on the facts in the case. They key question for the courts will be whether the wrongdoing was sufficiently closely connected to the job the wrongdoer is contracted to do so that it is just to hold the employer liable for the losses caused.

A recent interesting decision has considered an employer's vicarious liability for harassment via social media.

Case details: Forbes v LHR Airport [2019]

Mr Forbes worked as a security officer for LHR Airport Ltd ('LHR'). His colleague, Ms Stevens, shared an image of a golliwog with friends on her Facebook page. A colleague who was a 'friend' of Ms Stevens on Facebook, later showed the image to Mr Forbes, who complained to his line manager. A formal grievance followed, ultimately resulting in Ms Stevens receiving a final written warning and Ms Stevens offering Mr Forbes an apology.

Later, Mr Forbes and Ms Stevens were posted on duty together, resulting in Mr Forbes making a formal complaint and bringing a claim of racial harassment, amongst other things, against LHR.

Relevant law regarding workplace harassment

Harassment occurs when someone engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: i) violating B's dignity; or ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B (referred to as 'prohibited effects' below). Race is a protected characteristic.

When considering whether the unwanted conduct had the prohibited effect, a tribunal must take into account the subjective effect on the "victim" and whether it is reasonable for the conduct to have had that effect in the circumstances.

An employer will be found vicariously liable for harassment if the wrongdoer was acting in the course of their employment.

EAT's decision

Mr Forbes lost his tribunal case because Ms Stevens' actions were not found to have taken place in the course of her employment. Mr Forbes appealed.

Was the conduct in the course of employment?

On the facts, the EAT found that Ms Stevens had posted the image on Facebook outside of working hours and did not mention work or colleagues in the post. The majority of her friends on Facebook were not work colleagues. The EAT found that the tribunal was therefore entitled to find that this did not amount to an act carried out 'in the course of employment'.

What was the purpose / effect of the conduct?

The tribunal had accepted that the image posted on Facebook was offensive and caused Mr Forbes offence, but determined that by sharing the image Ms Stevens' did not have the purpose of creating the prohibited effect. This was because she later showed contrition and sincerely apologised for her actions and Mr Forbes was not a Facebook friend of hers nor was Mr Forbes directly linked to the offending post. The EAT held that the tribunal had conducted a reasonable review of all the other circumstances in the case and that this had entitled it to come to the conclusion it did. As a result, Mr Forbes' claim for harassment failed.

Could the tribunal take into account the later apology?

At appeal, Mr Forbes challenged the tribunal's inclusion of Ms Stevens' apology when considering if her Facebook post had the prohibited effect, because the apology came after she had posted the image. The EAT found that the tribunal was not limited to considering the circumstances existing at the time of the alleged act. This meant that Ms Steven's later apology could be taken into account when determining the purpose or effect of the act.

Conclusions

In reviewing the case, the EAT accepted that there may be circumstances where sharing posts or images on social media could be done in the course of employment, such as where a particular page or group is principally used for work purposes. The EAT also found that the mere fact an employer considers disciplinary action appropriate does not automatically mean the act itself occurred in the course of employment. Employers may find this useful when drawing up or reviewing social media and IT policies. For example, making clear that social media posts made outside of work can still attract disciplinary action, without risking vicarious liability for actions taking place outside of work.

This case also shows employers do have opportunities to de-escalate potential harassment claims if an employee has committed an act outside of work by trying to repair relations between the effected employees. However, this case also shows that where an act occurs during the course of employment, an employer must show it had taken proper steps to avoid that act occurring in the first place and cannot act after the event to undermine a vicarious liability claim.

Because of the increasing integration of social media in all aspects of people's lives, the issue of employer's vicarious liability for workplace harassment and bullying via social media will likely continue to develop. In this case the EAT was satisfied that the post was not made in the course of employment, but it also acknowledged that in theory it was possible for employers to be vicariously liable for employees' social media content. Precisely where the line will be drawn, we shall have to wait and see.