...who hold the employer responsible for the perpetrator's actions. The case of Forbes v LHR Airports Ltd provides a helpful example of when an employer should not be held liable for the actions of their employees.
Employee A posted racially offensive material on Facebook to all her friends. One of her friends was a colleague (Employee B). Employee B then showed the post to Employee C who was offended by it and complained to the employer that racist material was being shared at work. Employee A apologised to Employee C for the offense caused and was subsequently disciplined and given a final written warning.
Employee C then brought a claim against the employer based on the actions of Employee A, alleging harassment on the grounds of race.
Generally, anything done by an employee in 'the course of employment' is treated as being done by their employer - making the employer 'vicariously liable'. The question as to whether a conduct is within the course of employment is a question of fact and employment tribunals are required to interpret the words 'in the course of employment' using its everyday meaning.
In this case, the Employment Appeal Tribunal (EAT) determined that the posting was not in the course of employment and therefore determined that the employer was not vicariously liable for the actions of Employee A.
The EAT held the view that "a lay person would not consider the sharing of an image on a private non-work related Facebook page, with a list of friends that largely did not include work colleagues , an act done in the course of employment." Employee A's conduct did not take place at her place of work nor did she use any company equipment (computer or work phone), coupled with the fact that she made no reference to her employment or any of her colleagues.
The EAT determined that the posting was racially offensive and so Employee C was potentially harassed. The key question in this case was whether: (1) Employee A intended to harass Employee C, or (2) whether it was reasonable in all the 'wider circumstances' of the case for Employee C to perceive Employee's A's actions as harassment.
In regards to Employee A's 'intent', when she posted the offensive content she did not know that it would be shown to Employee C. The EAT determined that Employee A therefore did not intend to harass Employee C.
More surprisingly, the EAT also concluded that it was not reasonable for Employee C to perceive Employee A's actions as harassment. The EAT took a permissive approach to what 'wider circumstances' should be taken into account, including events that took place after the initial offensive conduct. The Tribunal took into account the fact that Employee A had immediately apologised to Employee C, thereby presumably diminishing the impact of her offensive conduct on Employee C. The EAT determined that the Tribunal did not err in taking into account the later apology in concluding that Employee C was not harassed.
Employers can argue that they should not be held vicariously liable for the actions of their employees if they took all reasonable steps to prevent the employee from doing the discriminatory act (or anything of that description). Employers have been hesitant to run this defence due to a constricting definition of 'reasonable steps' in the EHRC Code of Practice.
However, in this case the EAT rules that whether steps taken by an employer will be considered reasonable is dependent on the facts of the case. In this instance, although the employer had not publicised, audited or monitored its social media policies (as required by the EHRC list), the EAT determined that the reasonable steps defence had still been established. The employer had the required policies and they had treated Employee A's conduct seriously by issuing her with a final written warning.
Following a number of cases where the scope of vicarious liability has been extended, it is encouraging for a finding to be made that employers should not be held liable for the purely private actions of their employees on social media, no matter how offensive. It also highlights the importance of having social media and equality policies to establish the reasonable steps defence, treating every discrimination or harassment complaint seriously and ensuring that a proper disciplinary procedure is followed.
The power of saying sorry quickly should also be carefully considered in circumstances where offensive behaviour has clearly taken place - so perhaps sorry should not be the hardest word?