In the recent case of Forbes v LHR Airport Limited, the appellant, Mr Forbes, was a security
officer at Heathrow Airport. The appellant’s colleague, Ms Stevens, posted an image of a “golliwog” onto her private Facebook
page with the caption:
“Let’s see how far he can travel before Facebook takes him off”. The
picture was shared with Ms Stevens Facebook friends, including a
colleague of both Mr Stevens and Mr Forbes, who later sent the image on to the appellant. Mr Forbes complained to his line manager and subsequently raised a formal grievance alleging
harassment by Ms Stevens. Ms Stevens herself was subject to disciplinary action. Mr Forbes was
later placed to work alongside Ms Stevens and complained in response to
which he was moved to a different location without explanation. He then
went off sick and brought a claim of harassment, victimisation and discrimination against his employer (LHR Airport Limited).
The Employment Appeal Tribunal (EAT) held that the employer was not liable for harassment under the Equality Act 2010 and dismissed the appeal. The image had been posted to a personal Facebook page and under S109 of the Equality Act it is required that the act must be done in the "course of her employment", which on the facts of the case, the post was not.
Ms Stevens hadn't posted the image whilst at work or from a work computer, didn't reference her employer and shared it to her private profile which was closed to the appellant due to them not being 'friends' on the social media site.
The EAT made clear it would not set out any restrictive guidance on when an employer would be liable under the Equality Act as each case turned on its own facts. The increasing use of social media and the consequent blurring of traditional boundaries between work and private life make hard and fast rules very difficult. There are certain factors which the Tribunal will take into account such as the crossover between Facebook friends and work colleagues, where the greater the crossover, the stronger the link to work.
How we can help
Employment Law affects every aspect of the relationship between employer and employee and extends to others connected with the business of the employer.
Rights and obligations are created on both sides of the relationship and understanding that dynamic is fundamental to what we do.
Complying with and managing the effect of Employment Law and Regulation often presents challenges to employers. The pace of change and the complexity in this area of the law means that specialist advice delivered in a commercial context is crucial in helping businesses maintain their principal focus; running and improving their organisation.
Under the Employment Act 2010, employers are liable for acts of discrimination, including harassment which are committed in the "course of employment", which has been held to include social functions as well as the usual working day.
Employers need to show they took reasonable and preventative steps to prevent discriminatory behavior and that they have detailed policies in place to back this up. Further employers need to ensure they have taken reasonable steps to ensure that this is well communicated to all members of staff.
In almost every workplace, disputes between employers and employees can
occur. As an employer, you’ll want to ensure that
these disputes don’t impact negatively on your business and wherever possible,
it’s best to resolve differences directly with your employees. However,
when disputes cannot be resolved internally, you may need to attend an
employment tribunal.
CONTACT US
If you require advice on a work place dispute or preventative measures you can put in place, please contact our specialist Employment team by email at info@ramsdens.co.uk or call on 01484 821 500.
Further, the team are hosting a free to attend Employment Law seminar on 16 October, 2019 where they will take you through the cycle of an Employment Tribunal, the key steps and how to place yourself in the best possible position to successfully defend the claim. Click here for information or get in touch at the details above.