Unfair Dismissal and Offensive Comments on Facebook

Social media is an online platform or app that allows parties to communicate instantly with each other or to share data in a public forum. It is entirely dependent on the specific business on how they approach and conduct their policy in regards to social media, which includes social forums such as Twitter, Facebook and LinkedIn. Social media also covers blogs and video and image-sharing websites such as YouTube.


Where a personal social media account is used for work purposes that might create a connection to work, there is right for dismissal within these circumstances. The Equality Act 2010 makes employers vicariously liable for discrimination committed “in the course of employment” unless the employer has taken all reasonable steps to prevent the discriminatory act. Establishing whether an individual is acting “in the course of employment” is a matter of fact, being completely dependent on the relevant circumstances of the case and should be interpreted in the way in which someone would understand them. 


An example of a discrimination claim being made under these circumstances is demonstrated within the Forbes v LHR Airport Limited case. 


The Case 


The Claimant was a security officer, where their colleague, DS, posted an image of a golliwog on her private Facebook page with the caption, “Let’s see how far he can travel before Facebook takes him off”. The image was shared with DS’s Facebook friends, including another colleague, BW. The Employment Appeal Tribunal was held to prove whether the employer was not vicariously liable for racial harassment. 


Mr Forbes, another colleague, was not among Ms Stevens’ Facebook friends. Therefore, he was not aware of the Facebook post until BW later showed the image to him, where a formal complaint was made that racist images were being circulated in the workplace. Based on this complaint, Ms Stevens was given a final written warning for breaching the employer’s dignity at work policy with the grievance being upheld. 


Despite making a racial harassment claim against his employer, Mr Forbes’ employment tribunal claim was rejected. Based on the evidence provided, the employment tribunal concluded that Ms Stevens had not been acting in the course of her employment. 


She was not at work when she added the Facebook post, made no reference to any employees in the post, and did not use the employer’s equipment to add the post. Additionally, Ms Stevens shared the image privately among her Facebook friends, preventing Mr Forbes from seeing the post as he was not on her list of Facebook friends.


Professional advice to employers


Despite the rejection of Mr Forbes’ appeal, the reasoning behind this was due to the fact that the post was shared when disconnected from the workplace. However, there are many circumstances in which the sharing of an image on a Facebook page is an act done “in the course of employment”. 


The perfect example of this would be if a group, or Facebook page, was created solely for the purpose of communicating with work colleagues or routinely used for raising work-related matters. Although content within this environment may be seen as an ostensibly private act, within an Employment Appeal Tribunal, this is regarded as sufficiently closely connected to the workplace to render it an act done “in the course of employment”.


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