Not All In A Day's Work. Facebook Post Not 'In The Course Of Employment'

An employer is only vicariously liable for acts of employees if those acts are done "in the course of employment". In LHR Airport Ltd v Forbes the EAT considered whether a Facebook post by an employee was done "in the course of employment" and concluded that it was not.

One of the claimant's colleagues, Ms Stevens, posted an image of a golliwog on Facebook. Another colleague, who was one of Ms Stevens' Facebook friends, showed the claimant the image. The claimant raised a grievance, which the employer upheld, and Ms Stevens was disciplined. He then brought a harassment claim but it failed; the tribunal found that the offensive post was not done "in the course of employment", so the employer could not be vicariously liable for it. The claimant appealed.

The EAT upheld the tribunal's decision. Whether an act occurs "in the course of employment" is fact specific and a question for the tribunal. It is not always easy to assess if there is a sufficient nexus between an employee's personal social media account and their employment - this may depend on whether the account is used for work-related purposes. However, it is neither possible nor desirable to set out hard and fast guidance about when the boundary between what is personal and what is work is crossed. The tribunal was entitled to reach the decision it had because:

The employee was not at work when the image was posted, her Facebook friends were generally not work colleagues and the post did not refer to the employer; Although...