Racially offensive Facebook posting not done in course of employment

The Employment Appeal Tribunal has confirmed that an employer was not vicariously liable for the actions of one of its employees when she made a racially offensive posting on her private Facebook page. That was because, even it had amounted to racial harassment of a colleague who was subsequently shown the post, the offending act was not done in the course of employment.

Under the Equality Act anything done by an employee is treated as also done by their employer – in effect making it vicariously liable for the actions of its employees. However this principle only applies if the offending action is done in the course of employment. With social media postings, it is often difficult to draw the line between what is done in the course of employment and postings that are private actions. 

So what made the employment tribunal draw the line where it did in this instance? The key factors pointing to the offensive posting being outside the course of employment were as follows:

• The account was private and not used for work-related purposes
• The posting was made outside working hours on a private device
• There was nothing to connect the posting with the employer, and no employees were mentioned
• The post was only shared among her Facebook friends, one of whom happened to be a work colleague
• It only came to the complainant’s notice when that work colleague showed the image to the claimant

The EAT endorsed the tribunal’s conclusion that the posting was not done in the course of employment. It pointed out that it was not “possible or even desirable to lay down any hard and fast guidance in respect of these matters” and that “no clear boundary as to when such conduct will be in the course of employment can be defined”. Instead it will be a matter of fact for the employment tribunal to determine, depending on the all the circumstances.

The fact that an offensive posting was made outside the course of employment doesn’t prevent an employer taking action about it, though whether any resulting dismissal will be fair is another question. In this case, when the posting was brought to the employer’s attention by way of a formal grievance, it upheld the grievance and commenced disciplinary proceedings against the employee who made the posting. She apologised, but despite that was given a final written warning. However the EAT stressed that the fact that the employer had considered it appropriate to take disciplinary action did not meant the conduct in question was necessarily done in the course of employment.

Notwithstanding this decision, employers will not be inclined to take a relaxed view of offensive but private social media postings which find their way into the workplace. Indeed, the outcome might have been different in this case if the complaint had not been about the colleague who made the original posting, but about the employee who showed it to her at work. However, this decision will be some comfort to employers who do their best to promote equality and diversity and to confront any offensive material when it enters the workplace, but are not in a position to control what their staff do on their private accounts in their own time.