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Forbes v LHR Airport Ltd

PS
BY Paman Singh
Employment Law & HR

The last few years have produced a number of cases that involved employees and their personal social media accounts. In particular, there have been a number of cases which deal with the issue of whether an act carried out by an employee is ‘in the course of employment’ and whether the employer can be held responsible for those actions.

The recent Employment Appeal Tribunal (EAT) case of Forbes v LHR Airport Ltd referenced this issue. Mr Forbes (F) worked as a security officer for LHR Airport Ltd. One of F’s colleagues, S, shared an image on her private Facebook page, of a golliwog, with the caption “Let’s see how far we can travel before Facebook takes him off”. F was not connected with S on Facebook so did not see this post himself, however his colleague showed him the post while they were at work. F complained to his employer about the content of the post and raised a formal grievance. Following the grievance S was imposed with a final written warning and she apologised.

Shortly after this incident F was due to work alongside S. F raised concerns about working alongside someone that he had raised a grievance against and he was subsequently moved to work from another location.

F felt that he was being victimised and harassed because he had complained about the post on S’s Facebook page so raised claims for harassment, victimisation and race discrimination.

The Employment Tribunal dismissed F’s claims on the basis that S was not acting ‘in the course of employment’. When the post was shared S was not in work, she was not using the employer’s computer or other device to share the post, the sharing of the image made no reference to her employer or any of its employees, the post was not directed at any colleague and no colleagues were mentioned in the sharing of the post.

Decision

The EAT dismissed F’s appeal and confirmed that whether or not an act is in the course of employment within the meaning of the legislation. It was held that this was a question of fact for the tribunal to determine, taking into account the wider picture.

Analysis

It may not be easy in such a case to determine whether an act is done ‘at work’ if it is done online and will depend on the specific facts.  In this case, the EAT said the tribunal had not erred when concluding S posted on her private Facebook page and that this was not in the course of employment.

Importantly this case does not mean that social media posts will never be made ‘in the course of employment’, all cases will be determined on their own specific facts and circumstances. It is always advisable to step back and think about the overall picture when there are issues around posts on social media. If you are concerned about your employees and the use/misuse of social media then please get in touch with your dedicated Employment Solicitor today.

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