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What is “in the course of employment”?

The Employment Appeal Tribunal (“EAT”) in the case of Forbes v LHR Airport Ltd has considered whether an employer should be liable for harassment where one of its employees posts an offensive image on Facebook and shares it with a colleague.

Background

The Claimant worked as a security guard for LHR Airport Ltd (“the Airport”). Ms Stevens, another employee of the Airport, posted a photo of an offensive image to her personal Facebook page, sharing it with her Facebook friends, amongst which, included a work colleague. This colleague showed the photo to the Claimant, who raised a grievance about the racist image.

The Claimant’s grievance was upheld and Ms Stevens was subsequently disciplined by the Airport, receiving a final written warning for her conduct.

After this, the Claimant was posted to work with Ms Stevens. The Claimant complained about working with Ms Stevens and subsequently he was moved to another work location. He brought a harassment claim to the Employment Tribunal.

The Law

Under section 26 of the Equality Act 2010, a person (“A”) harasses another (“B”) if A engages in unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Under section 109 (1) of the Equality Act 2010, an employer can be liable for discriminatory actions of its employees as long as the employee’s actions were done ‘in the course of their employment’.

Decision

The Employment Tribunal (“ET”) dismissed the claim because it concluded that, although the sharing of the image had the potential to cause offence on racial grounds, Ms Stevens had not shared the image in the course of her employment such that the Airport would otherwise be rendered liable.

It concluded that Ms Stevens had not been at work when she had shared the image; the image did not reference her employer or colleagues; Ms Stevens had not used her employer’s computer to share the image; the sharing of the image was private and only visible by her Facebook friends and the Claimant was not on her friends list.

The Claimant appealed but the Employment Appeal Tribunal (“EAT”) agreed with the ET finding that, on the facts of the case, the sharing of the discriminatory image was not done in the course of employment.

The EAT concluded that the words ‘in the course of employment’ had to be interpreted as a lay person would understand them. There is no clear defining line between conduct that is in the course of employment and conduct that is not and the tribunal had considered the correct factors. Therefore, the Airport was not liable for the actions of Ms Stevens.

Comment

This case demonstrates the difficulty in deciding whether, for the purposes of employer liability, an employee’s discriminatory actions are deemed as being in the course of their employment. In this instance, the EAT decided that the link between Ms Stevens’ Facebook account and her employer was insufficient because there was a limited crossover between the two, with Ms Stevens only being Facebook friends with one work colleague. However, the EAT acknowledged that this question may become more difficult in a situation where a greater number of work colleagues are exposed to a post and that each case must be decided on its particular facts.

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