Forbes v LHR Airports Limited - Discrimination: Vicarious Liability

The Employment Appeal Tribunal (EAT) has held that organisations can potentially avoid liability for acts of discrimination committed by employees if it is clearly established that the act complained of took place outside of work.

Under section 109 of the Equality Act 2010, organisations are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ and it does not matter whether that act is done with the organisation’s knowledge or approval. In proceedings against organisations in respect of an alleged act by an employee, a potential defence is that the organisation took ‘all reasonable steps’ to prevent the employee from committing the act or doing anything of that description.

FACTS

In this case, the claimant was shown by his colleague, BW, an image that had been posted on Facebook by another colleague, S. The image was a picture of a golliwog, which was accompanied by the caption, ‘let’s see how far he can travel before Facebook takes him off’. It had originated on S’s private Facebook page and had then been shared with a number of people, including BW, but not the claimant.

The claimant was appalled by the image and raised a formal grievance against S, complaining that racist images were being circulated in the workplace. The grievance was upheld and, following a disciplinary procedure, S was issued a final written warning. Following this, the claimant was rostered to work alongside S and raised concerns about this. He was then moved to another location without any explanation.

The claimant later brought claims of harassment, victimisation and discrimination on the grounds of race to the employment tribunal (ET). He claimed that the organisation was vicariously liable for the behaviour of S.

EMPLOYMENT TRIBUNAL

The ET initially dismissed his claim. They ruled that whilst the sharing of the image was capable of giving rise to the offence on racial grounds, the post had been done on S’s private Facebook page and had therefore not taken place ‘during the course of her employment’, so the organisation could not be vicariously liable. This was because it had been shared amongst a private group.

The ET went on to explain that, regardless of this, the organisation had taken all reasonable steps to prevent the employee suffering discrimination. They had policies that made it clear this behaviour was unacceptable, had upheld the claimant’s grievance, subjected S to a disciplinary procedure and ultimately issued her a final written warning.

The claimant appealed the vicarious liability point to the Employment Appeal Tribunal (EAT), and also disputed that the organisation had taken reasonable steps to prevent discrimination.

EMPLOYMENT APPEAL TRIBUNAL

The EAT dismissed his appeal, agreeing with the reasoning of the ET.

They explained that whether an act is carried out ‘in the course of employment’ is a question of fact for tribunals to consider regarding all circumstances. Relevant factors would include whether the act was done at work or outside work and, if outside work, whether there was a sufficiently close connection with work. While such an approach is relatively straightforward when dealing with the physical environment of work, the EAT commented that it’s far less easy to apply when dealing with the virtual world.

Whilst there may be circumstances where the sharing of an image on a Facebook page could be found to be an act done in the course of employment, this will depend upon the specific facts of the individual case. When applied to this situation, the employee had posted the image on a private account and had not been at work when she had done so. Her friendship group was largely non-colleagues. She was not at work when the image was posted, the image had not made reference to the organisation or any of its employees, and S did not use any of the organisation’s equipment in sharing the image. Despite this, the organisation had treated the conduct of S seriously and given her a final written warning.

Note for employers

In determining if an act was done ‘in the course of employment’, tribunals will first determine the ‘act’, which in this case was the posting of the image by S. The circumstances were such that there was enough distance between the act and the employment to demonstrate it was not done in the course of employment, meaning that the organisation was not liable.

Despite this, the EAT did note that there may be many circumstances where the sharing of an image on social media could be found to be an act done in the course of employment, such as where a Facebook page is principally maintained for the purposes of communicating with work colleagues. Organisations therefore need to approach these situations carefully. The EAT also specified that this outcome may have been different if the person who had shown the image, BW, had been the one who was accused of the harassment.

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