Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Are you liable for an employee’s Facebook post?

Forbes v LHR Airport Ltd

Sharing a racially offensive Facebook post with a Facebook friend colleague wasn’t done ‘in the course of employment’, so an employer wasn’t vicariously liable for harassment.

An employee at London’s Heathrow Airport (LHR), known as ‘S’, shared a racially offensive post on Facebook. ‘F’ was a fellow LHR employee, but not a ‘Facebook friend’ of S. F was shown the post by
another colleague whilst at work.

F raised a grievance, and as result S was disciplined and given a final written warning. F also claimed that LHR was vicariously liable for S’s actions. However, the tribunal disagreed, finding that the offensive post was not done “in the course of employment” (a key legal test in establishing employer
liability).

On appeal, the EAT upheld the tribunal’s decision on the basis that:

, S was not at work when the offensive image was posted;
, The post did not refer to LHR or any of its employees;
, S did not use the employer’s systems or equipment in sharing the post;
, S’s Facebook account was private with mainly personal Facebook ‘friends’; only a small number were work colleagues (which didn’t include F);
, S offered to apologise when the impact of her post was explained to her; and
, LHR was found to have taken reasonable steps to prevent discrimination by taking S’s misconduct seriously when dealing with F’s grievance.

LEGAL OPINION

It’s important to note that this ruling does not mean employers cannot be liable for their employees’ social media posts as each case and judgment will be fact-sensitive.

With so many people now using social media, the risk of employees making discriminatory posts is considerable. Discriminatory posts not only cause offence, they can also be costly to business and result in reputational damage. Robust social media and IT policies, which are supplemented by regular training, are arguably more important than ever, especially for those who use social media solely or principally for work.

If your business utilises social media, our expert team can prepare or review your existing policies and ensure that appropriate and adequate training is provided, helping you to minimise any risks.


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