Posting on a private social media page outside of working time was not considered “in the course of employment” in the context of deciding whether an employer is vicariously liable for discriminatory acts.
The Claimant was employed as a security officer by the Respondent. Another employee of the Respondent posted a racially discriminatory image on his private Facebook page outside of working hours. This was seen by another colleague and subsequently shown to the Claimant. The Claimant raised a formal grievance in relation to this post and complained that racist images were being circulated in the workplace. The complaint was upheld, and the employee who posted the photo was disciplined. When the Claimant was later scheduled to work alongside this employee, he complained and was moved to a different location with no explanation.
The Claimant subsequently brought an Employment Tribunal (ET) claim for harassment, victimisation and discrimination on the grounds of race. The key question was whether the employer could be held vicariously liable for the actions of the employee, to give rise to liability for the various claims. To be held vicariously liable, the act complained of must be done by the employee “in the course of employment”.
His claim was dismissed, on the grounds that the employee had not been acting “in the course of her employment” when posting the image in question. The ET held that the employee in question had shared an image that could be construed as causing offence on racial grounds, but her act of posting the message on her Facebook page was not done in the course of her employment as she was not in work at the time it was posted and no reference was made to the employer in the post. The employer, it was held, could not therefore be vicariously liable for the actions.
The Claimant appealed.
The appeal was dismissed by the Employment Appeal Tribunal (EAT). The EAT confirmed that whether something is done in the course of employment is a question of fact for the tribunal to decide in relation to the specific facts and circumstances of each case; this is true regardless of whether we are considering the physical work environment or the virtual landscape. The ET was correct to determine that this was not “in the course of employment” as it had not been posted whilst in work, work equipment was not used, no reference was made to the employer and it was shared among a private group of people that the Claimant was not part of.
The alleged act of harassment was the posting of the image rather than the colleague showing it to the Claimant. Interestingly, the EAT noted that the outcome of the complaint might have been different that other colleague had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Claimant was done in the workplace and might be said to have been done "in the course of employment”.
- Implication for Employers
Employers can be held vicariously liable for acts of their employees done “in the course of employment” only. It can be especially difficult to establish what is done “in the course of employment” if the act occurs online and this is made more difficult for employers where social media is involved, especially where a personal social media account is used for work purposes that might create a connection to work.
As a practical step, it is important for all employers to have social media policies in place to make clear to employees how and when social media can be used, what will be unacceptable, and ensure all employees are made aware of this policy.