Ask About… Retail, Fashion and Hospitality

I am a Group HR Manager for a high street retail chain.

We have received a grievance about events at an “after party” following our Head Office Christmas party. The “after party” was nothing to do with the company but it was apparently arranged via our intranet message board.

An employee photographed a colleague and their manager in a compromising position and then posted it on Instagram with a lewd comment. The employee in the picture objected. Other employees weighed in and there was a fight. Two employees ended up in A&E with, respectively, concussion and a broken wrist. 

Needless to say, it was a hot topic in the office the next day. Someone reported what had happened to HR but did not want to make a formal complaint. 

We decided the “after party” was sufficiently related to work that we should investigate the issues, without a formal complaint. An investigation is considering whether we should discipline any of the protagonists. From what we know, it’s looking likely!

My question is about the Instagram posting. We received a grievance from the employee in the photo (who is one of the employees likely to be disciplined). They say that posting the picture and comment on Instagram was sexual harassment and they are going to bring a claim against the company as well as the individual. But the Instagram account is nothing to do with the company. We have a bullying and harassment policy and would never condone any type of harassment.

Surely the company isn’t liable for an employee’s decision to post about a colleague on their personal Instagram account? Especially as the whole thing took place outside work at a social event organised by employees not the company?

A: Of course, the company can’t be held liable - it’s not like the employee put the picture onto the intranet at work, for goodness sake!! There are some circumstances in which an employer can be liable for employees’ acts of harassment (and other discrimination) but this certainly isn’t one of them.

B: Under the Equality Act, anything done by an employee “in the course of employment” is treated as also done by the employer. It doesn’t matter whether it’s done with the employer’s knowledge or approval. Posting a picture and comment about a colleague at a work “after party” falls squarely into the realm of “in the course of employment”. So, yes, the company is liable.

C: Under the Equality Act, anything done by an employee “in the course of employment” is treated as also done by the employer. It doesn’t matter whether it’s done with the employer’s knowledge or approval. It is a defence for an employer to show that they took all reasonable steps to prevent the employee from taking that action (known as the “statutory defence”). Although it’s possible that the company could be liable for these acts, the fact you have a bullying and harassment policy means that you have a watertight statutory defence to any claim.

D: Under the Equality Act, anything done by an employee “in the course of employment” is treated as also done by the employer. It doesn’t matter whether it’s done with the employer’s knowledge or approval. The posting of an offensive image on a personal social media account which has no links with work may not be within the “course of employment”. But, ultimately, whether something is “in the course of employment” is a question of fact to be interpreted as a lay person would understand the words.

The correct answer is D.

The question of whether an employer can be liable for the actions of employees on social media is a tricky one. Under the Equality Act 2010 (section 109 (1)), an employer is liable for actions of employees “in the course of employment” but how far does that extend? Can a posting about a colleague on an entirely personal social media account, with no links to the employer, and made outside work hours, amount to an act of harassment within the course of employment? And does the existence of an anti-harassment policy mean an employer is in the clear?

The Employment Tribunal (ET) in the case of Forbes v LHR Airport Limited decided that this type of posting was not done “in the course of employment” and its decision was recently upheld by the Employment Appeal Tribunal (EAT).

A colleague of Mr Forbes, Ms S, shared a racist image on Facebook with her Facebook friends. One of these friends was a colleague who showed it to Mr Forbes at work. He then raised a formal grievance about the posting. The Respondent upheld the grievance and Ms S was given a disciplinary warning. Mr Forbes subsequently brought a claim of harassment after he had been moved to work alongside Ms S.

The ET decided that Ms S’s action in sharing the image was not done in the course of employment. She was not at work and the post did not mention the Respondent or any colleagues.

The EAT agreed with the ET’s decision. A lay person would not consider that sharing an image on a private Facebook account which had no connection with work, with a list of friends who were mostly not colleagues, was done in the course of employment. The act of the other colleague, who showed the image to Mr Forbes at work, could be regarded as being done in the course of employment but that was not how Mr Forbes had argued his claim.

We cannot assume, however, that an employer can never be liable for this type of social media posting by an employee. The EAT made it clear that whether something is done in the course of employment is a question of fact. The words must be interpreted in the way that a lay person would understand them and it was not possible or even desirable to give any guidance as to when conduct should incur employer liability. The EAT accepted that there may be circumstances in which sharing an image could be done in the course of employment, for example if the social media account was used principally for work purposes.

The EAT noted that just because an employer takes disciplinary action does not automatically mean that the conduct was done in the course of employment. Employers can take action about conduct outside work, particularly if they have a policy which permits this.

In the example above, there is a risk that it could be considered to have taken place in the course of employment. Although the “after party” was not organised by the company, it took place immediately after the work party and was attended by managers as well as other employees. The picture posted was clearly of work colleagues and included a comment about them. It is also not helpful that the party was organised on the company’s intranet. Make sure that the whole event is fully investigated and appropriate disciplinary action taken. The fact that you do this will not necessarily increase the chances of the actions being “in the course of employment”.

The fact that you have an anti-harassment policy is unlikely in itself to be sufficient for the statutory defence that you have taken all reasonable steps to prevent employees from discriminating. You should consider what other action you could take to ensure that employees are aware of the standards of conduct expected at work e.g. regular training sessions and publicity about your policy. You should also review your existing policies and, if you do not have one, write and publicise a policy about conduct related to company social events and other social events with colleagues not organised by the company (including not using work communication tools to organise private parties).

If the complainant sees that you have taken positive steps as a result of their complaint, they may be satisfied that you have dealt with the matter appropriately and not seek legal redress.