Forbes v LHR Airport Ltd UKEAT/0174/18

Facts

Mr Forbes worked for LHR Airport Ltd (LHRA) as a security officer. One of his colleagues, Ms Stevens, shared a picture of a golliwog on her Facebook page with the message "Let's see how far he can travel before Facebook takes him off". The post was shared with her Facebook friends, including a colleague, but not Mr Forbes. The colleague later showed the image to Mr Forbes, who complained to his line manager. This led to a formal grievance, which was upheld. Ms Stevens was subjected to disciplinary action, which led to a final written warning. Mr Forbes later brought a claim of harassment against LHRA.

Decision

The Employment Appeal Tribunal (EAT) dismissed the claim. Ms Stevens did not post the image in the course of her employment and it was shared on a private non-work-related page, with a list of friends that by and large did not include colleagues. She was not at work when she posted the image, she did not use a work computer and she did not mention any colleagues or LHRA in the post. This meant that LHRA was not vicariously liable for her actions.

Comment

This is a sensible decision and will be welcomed by employers. It is interesting to note that the EAT stated that it was not possible or desirable to set out guidance as to when such conduct should incur employer liability, especially because use of social media continues to increase. Whether or not something is done in the course of employment when social media is involved will be a question of fact for the tribunal. However, where a Facebook page is used solely or principally for work purposes, sharing an image there is likely to be done in the course of employment. The EAT also commented that employers can, depending on their policies, take disciplinary action against employees for conduct outside work. This is a useful reminder to review your social media policy and disciplinary procedure.