Employer found not liable for a co-worker’s post of a picture of a golliwog!

In a recent case (Forbes v LHR Airport Ltd), the Employment Appeal Tribunal upheld the decision of the Employment Tribunal, that an employer was not liable for harassment after an employee posted a racially offensive social media post and shared it with a co-worker.

What happened?

A co-worker, Ms S, of the Claimant posted a picture of a golliwog to her personal Facebook, which was shared with her Facebook friends, including a work colleague. The post was shown to the Claimant who raised a complaint of harassment with the Respondent employer. Ms S apologised to the Claimant and received a final written warning. After raising concerns to his employer about being rostered with Ms S, the Claimant was moved to another location. In response he brought claims of harassment, victimisation and discrimination to the Tribunal.

Although the Employment Tribunal found that Ms S had shared an image which could cause offence, the Respondent was not liable as the act had not been done in the course of her employment. The Claimant appealed the decision.

The decision of the Employment Appeal Tribunal (“EAT”)

The EAT dismissed the appeal on the ground that an employer is only liable for the acts of their employees which are done in the course of employment. Whether an act is done in the course of employment is a question of fact with regards to all the circumstances. In this case the act of posting the image to social media was done outside of work and shown to the Claimant during work hours by a third party.

What does this mean for employers?

Employers must ensure that they have a comprehensive social media policy in place which clearly states rules regarding the standard of behaviour expected from their employees on social media. They must take action against inappropriate behaviour on social media seriously and take the appropriate action, as the Respondent did in this case.

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