There is no getting away from it... social media is everywhere and it continues to impact on workplaces. One of the latest cases to be heard is Forbes v LHR Airport Limited which looks at whether a Facebook post was made in the course of the employee's employment.
- In her own time, Employee A uploaded a racist image on her Facebook page and shared it with her Facebook friends. Employee B was one of those friends (and was the only work colleague on her friends list).
- While at work, Employee B showed the image to Employee C (Mr Forbes, the Claimant), who took offence.
- Employee C raised a formal grievance to his employer. Employee A was then issued with a final written warning.
- A few weeks later, Employee C was scheduled to work alongside Employee A. Employee C complained about this and he was moved to work at a different location.
- Employee C brought various types of race discrimination claims.
The Employment Tribunal rejected Employee C's claims, with the main reasoning being that the image posted by Employee A was done privately on her home computer and circulated only among her friends list and Employee C was not her Facebook friend. As there was no mention of her employment, work colleagues or the employer, it fell outside of the course of her employment (so the employer could not be held liable).
Employee C appealed to the Employment Appeal Tribunal but was not successful.
What to take away:
This is interesting because the racist image was shown by Employee B to Employee C in the workplace and Employee A was disciplined by the employer for posting the image but yet, it was still found to be outside the course of the employment. The emphasis was on Employee A's posting of the image, which she did outside of work and with no reference to the employer or any colleagues.
The Employment Appeal Tribunal made the analogy of an employee chanting racist slogans at a football match. It explained that this could, in no way, be seen as in the course of that individual's employment but that the employer might nonetheless want to address it with the employee because of reputational issues.
In partnership with Martin Thomas, author of the Financial Times Guide to Social Media Strategy, Goodman Derrick recently hosted a hugely successful social media strategy seminar on the many legal, regulatory and reputational challenges that have been created by the use of social media by employees and senior managers. His chapter on risk management features expert advice from Goodman Derrick's Employment Team.