Hello and welcome back to your weekly case law update. Given we are forecasted showers all weekend it seems apt to start the weekend with something dry and some EAT judgments certainly fall into that category!
Last week’s update had two cases for you, one concerning religion/belief discrimination and another about Tribunal Awards. This week our case is about race discrimination, harassment, victimisation and social media – not much then! The question this week asks:
Is sharing a racially discriminatory image on social media outside of work time harassment?
Mr Forbes, the Claimant, was a security officer at Heathrow Airport for LHR Airport Ltd, the Respondent. One of the Claimant’s colleagues, Ms Stevens, posted a discriminatory image of a golliwog on her timeline with the caption, “Let’s see how far he can travel before Facebook takes him off.”
The image was posted outside of working hours off a device that belonged personally to Ms Stevens. The image was only visible to Ms Steven’s Facebook friends. The Claimant and Ms Stevens were not friends on Facebook.
The Claimant was shown Ms Stevens’s post by a colleague. He complained of discrimination and harassment to the Respondent. Initially no action was taken against Ms Stevens who stated the image was shared due to a fond memory of Robertson’s Jam (younger readers may need to Google!).
The Claimant raised a grievance about the lack of disciplinary action taken against Ms Stevens. The Respondent upheld the grievance and suspended Ms Stevens. The Respondent gave her a final written warning for her conduct. Ms Stevens apologised for the conduct during her disciplinary hearing.
The Claimant was subsequently rostered to work with Ms Stevens. He raised concerns about this and was moved to work in another location without explanation. The Claimant felt he was being victimised for raising a grievance against Ms Stevens and subsequently went off sick and issued Employment Tribunal claims for race discrimination, victimisation and harassment.
The ET rejected the claims. It held Ms Stevens’s post was done out of work, outside the course of employment, on a personal device and only shared to a closed group. Her profile also did not state she was an employee of the Respondent. As such the image was not an act in the course of employment and outside of the Respondent’s control.
The Claimant appealed to the Employment Appeal Tribunal. The EAT dismissed the appeal as the act of harassment was not connected to work and, whilst facts involving social media make the lines more blurred, the ET was entitled to make that finding.
The takeaway point:
In this case, no, sharing a discriminatory image outside of work did not amount to harassment. However, if the image had been shared off a work device, off a personal device in work time or off an account linked to the employer then the line becomes blurred and it could be connected to employment.
Additionally, had the employee stated being showed the image by a separate colleague was an act of harassment then the claim could have succeeded as that was in the course of employment. Employers need to tread carefully when dealing complaints made in relation to social media activity.
Also worth noting here is that the employer chose to move the employee who complained rather than the employee who committed the misconduct. This is a mistake many employers make and had the social media post been in connection with employment, the moving of the complaining employee could amount to victimisation.