Was An Employer Vicariously Liable For Workplace Harassment Via Social Media?

EAT provides useful guidance on a developing area of potential liability for employers.

Employers can be vicariously liable for the actions of employees under the Equality Act 2010 ('EqA'10'). The issue of vicarious liability for losses caused by the wrongdoing of an employee is often tested by the courts and tribunals, with decisions tending to show that vicarious liability is heavily dependent on the facts in the case. They key question for the courts will be whether the wrongdoing was sufficiently closely connected to the job the wrongdoer is contracted to do so that it is just to hold the employer liable for the losses caused.

A recent interesting decision has considered an employer's vicarious liability for harassment via social media.

Case details: Forbes v LHR Airport [2019]

Mr Forbes worked as a security officer for LHR Airport Ltd ('LHR'). His colleague, Ms Stevens, shared an image of a golliwog with friends on her Facebook page. A colleague who was a 'friend' of Ms Stevens on Facebook, later showed the image to Mr Forbes, who complained to his line manager. A formal grievance followed, ultimately resulting in Ms Stevens receiving a final written warning and Ms Stevens offering Mr Forbes an apology.

Later, Mr Forbes and Ms Stevens were posted on duty together, resulting in Mr Forbes making a formal complaint and bringing a claim of racial harassment, amongst other things, against LHR.

Relevant law regarding workplace harassment

Harassment occurs when someone engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: i) violating B's dignity; or ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B (referred to as 'prohibited effects' below). Race is a protected characteristic.

When considering whether the unwanted conduct had the prohibited effect, a tribunal must take into account the subjective effect on the "victim" and whether it is reasonable for the conduct to have had that effect in the circumstances.

An employer will be found vicariously liable for harassment if the wrongdoer was acting in the course of their employment.

EAT's decision

Mr Forbes lost his tribunal case because Ms Stevens' actions were not found to have taken place in the course of her employment. Mr Forbes appealed.

Was the conduct in the course of employment?

On the facts, the EAT found that Ms Stevens had posted the image on Facebook outside of working hours...