Race Discrimination through Social Media platforms

The ever-increasing use of social media is having a knock-on effect on relationships in the workplace. The Employment Tribunal are seeing matters brought before them in relation to online discrimination and harassment, the question being whether the employer can be vicariously liable for posts online by its employees.

In the recent case of Forbes v LHR Airport Ltd, an employee had posted an offensive image on Facebook. The Claimant complained that racist images were being circulated amongst his colleagues and around the workplace. He sought to bring claims of victimization, harassment and race discrimination.

The Employment Tribunal looked at the timing and nature of the post to determine whether it was carried out during the ‘course of employment’. The Tribunal concluded that as the post was shared outside of working hours, it was not in the ‘course of employment’ and therefore LHR Airport Ltd could not be vicariously liable for the actions of its employee. The claim was dismissed.

The Claimant appealed to the Employment Appeal Tribunal (EAT), where they upheld the Tribunal’s decision. When making its decision, the EAT looked into the fact that it was shared through a private Facebook to a list of friends which did not include the Claimant. It was the subsequent act of another colleague which brought the photo up during work to show the Claimant.

Although this case is good news for employers, it does highlight how difficult it can be as to whether an act falls into the ‘course of employment’ if it was done online.

Paul Burton, Head of Employment says: “If you wish to limit the number of claims regarding social media, it is advisable to have a social media policy setting out the rules and expectations clearly to employees to ensure values of equality and diversity are maintained.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.