Discrimination: can an employer be vicariously liable for bad conduct?

Amy harasses Bill if she does something in relation to a protected characteristic (race, sex, disability etc) which has the purpose or effect of violating Bill’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

If Amy harasses Bill ‘during the course of employment’ then the employer will be vicariously liable for her conduct unless they can show that they took all reasonable steps to prevent it.

In Forbes v LHR Airport, the employee’s colleague, S, shared a golliwog image on her private Facebook account together with a message saying, ‘let’s see how far he can travel before Facebook takes him off’. One of her Facebook friends was another colleague, BW, who showed the image to the employee. The employee lodged a grievance about S’s behaviour. The employer investigated, S apologised and was given a final written warning. When the employee was later moved to work with S, he went off sick and lodged an harassment claim.

The employment tribunal found that S’s actions were not done in the course of employment. She wasn’t at work when she posted the image. It was not done on a work computer. It was posted in a private group not including the employee and she didn’t mention any colleagues or her employer.

The Employment Appeal Tribunal agreed. They noted that BW’s act of showing the employee the image could have been done in the course of employment. However, the employee’s case was based solely on S posting the image, not on BW’s actions or discrimination. The EAT said sharing an image on Facebook might be in the course of employment where the Facebook page is used mainly for work purposes but that wasn’t the case here. The fact that the employer had dealt with the grievance did not necessarily mean the act was done in the course of employment either. Depending on policies, employers can take action for conduct which takes place outside work.

The line between work and home has become much more blurred since the introduction of technology which allows employees to work online at home. Matters are complicated by social media where work colleagues are ‘friends’ online if nowhere else. The EAT was clear not to give guidance on such matters because these cases are fact driven. However, as a rule of thumb, the bigger the crossover between work colleagues and social media friends, the more likely it is that online conduct might be dragged into the work sphere and implicate the employer. A comprehensive social media policy is essential, together with examples of inappropriate conduct outside work.