Employers can be held legally responsible for acts of discrimination and harassment carried out by their employees, provided that the conduct took place in the course of their employment.
The Employment Appeal Tribunal (“EAT”) in the recent case of Forbes v LHR Airport Ltd upheld the original Tribunal’s decision that an employee who posted racially offensive imagery on Facebook was not regarded as having acted in the course of her employment, despite having inadvertently shared the image with a colleague. It was relevant that the employee had not been at work at the time and did not mention any colleagues or the employer in the image.
It is important to assess the closeness of connection with employment when considering if actions were ‘in the course of employment’. The EAT commented that this matter is a question of fact, having regard to the circumstances of every case. With reference to this particular case, it was considered that the sharing of an image on a private Facebook page, with a list of “friends” that largely did not include colleagues was not an act done in the course of employment.
Despite the decision in this case, employers should still be aware that “off-duty” conduct may, in some instances, be regarded as sufficiently connected to work. A common example is in the context of work-related social occasions. A factual assessment will be both necessary and appropriate in every case.