Mr Forbes was employed as a security officer at London Heathrow Airport.
His work colleague, Ms Stevens,
posted an image of a golliwog on her Facebook
page, with the message, “let’s see how far he can travel before Facebook
takes him off”. The image was shared with Stevens’ Facebook friends, only
one whom was a work colleague, BW. (Forbes was not one on Stevens’ Facebook
Friends.) She posted the image on Facebook in her free time, at home, on her
home computer. Nothing on her Facebook page linked her to her employer.
BW showed the image to Forbes,
who complained to his line manager. Stevens apologised following an
investigation and was given a twelve (12) month formal warning. Forbes believed
his employer had not done enough so he issued a tribunal claim alleging race harassment,
victimisation and discrimination.
The tribunal dismissed the
claims. They accepted that Stevens shared an image capable of giving rise to
offence on racial grounds, but ruled that she did not this in the course of her
The tribunal judge took account
of the surrounding text including: the fact that Stevens was not at work; there was no reference to
the employer or to of its employees; no work equipment was used to share the
image; Stevens did not use Facebook at work and there was no evidence that she
intended to share the image for purpose or effect of created an intimidating,
hostile, degrading, humiliating or offensive environment for Forbes.
Forbes appealed. This report
focuses on his appeal against the tribunal’s finding that Stevens was not
acting in the course of employment when she posted the image.
The Employment Appeal Tribunal refused
to interfere with the tribunal ruling. Whether conduct takes place in the
“course of employment” is a question of fact to be decided by the tribunal
based on all relevant circumstances. The phrase must be given a meaning that a
lay person would understand.
An act of discrimination, harassment
or victimisation can be in the course of employment even if it takes place
outside working hours. Where the incident happens outside work, the tribunal
must establish whether there is enough of a connection with work to render it
in the course of employment.
As this case shows, there can
be challenges where an act is done in virtual world rather than physical
workplace. Where a social media account is also used for work purposes, this
may create a sufficient connection for a tribunal to conclude that the act was
done in course of employment, but there are no hard and fast rules.
There was nothing wrong with
the tribunal’s conclusion that Stevens was not acting in the course of her
employment when she posted the golliwog image.
The tribunal was correct to
focus on the moment sharing the image, because that was the act of alleged
harassment. The fact that Stevens’ employer treated the matter as a disciplinary
issue did not convert the incident into the something that took place in the
course of employment.
An employer’s actions after an incident cannot be relied on to decide whether the incident took place in the course of employment. In any event, an employer can take disciplinary action over a Facebook post which it considers damaging to its reputation, even if material was posted in the employee’s free time.
The decisions reproduced above can be considered as test case considering the constant changes due to the social media phenomena. The Maltese Industrial Tribunals are not reluctant to follow the UK Tribunals thus such decisions are important and should be considered.
(Credits to Work place Report November 2019)