Harassment: Are Employers Liable For Employees' Offensive Facebook Posts?

THE FACTS

Mr Forbes worked at London Heathrow Airport. One of his colleagues, Ms Stevens, posted an image of a golliwog on her private Facebook page with the caption "Let's see how far he can travel before Facebook takes him off". The image was shared with her Facebook list of friends, which included a work colleague. This colleague showed the Facebook image to Mr Forbes who was shocked and appalled by the fact that Ms Stevens had posted this image. He complained to his line manager that racist images were being circulated at work. Mr Forbes was not satisfied with his line manager's actions and he raised a formal grievance. His grievance was upheld and Ms Stevens was given a final written warning for her conduct which was considered to be in breach of the dignity at work policy.

Mr Forbes was subsequently posted to work alongside Ms Stevens. He raised a concern with his union representative and he was moved to another location without an explanation. This upset him as he felt that he was being victimised and discriminated against because he had complained about the image. He was signed off sick. Shortly before his return to work, he issued proceedings in the tribunal, alleging harassment, victimisation and discrimination.

The employment tribunal held that Ms Stevens had not been acting in the "course of her employment" when she posted the image on Facebook and that the airport was not therefore vicariously liable for her actions. When she posted the Facebook image, Ms Stevens was not at work. The post was shared privately among her friends' list, the post made no reference at all to the airport or any of its employees, and she had not used any of her employer's equipment in sharing the post.

The tribunal concluded that, in any event, the sharing of the image did not have the purpose or the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Forbes. The majority of the tribunal felt that, while the image was offensive and it did cause offence to Mr Forbes, this was not Ms Stevens'purpose and, taking into account her willingness to apologise, it was not reasonable for her conduct to have this effect on him. She had not therefore harassed Mr Forbes.

The tribunal also held that that the airport had taken reasonable steps to prevent Ms Stevens doing the discriminatory act, and it was not vicariously liable for her actions.

Mr Forbes's claim of victimisation was also dismissed.

Mr Forbes appealed to...