The Employment Appeal Tribunal (EAT) determined in a recent case that they did not consider an employer to be vicariously liable for harassment under the Equality Act 2010 (EqA 2010) where one of their employees posted a racially offensive image on Facebook and shared it with a colleague. As the employee was not at work at the time the image was posted on Facebook and did not mention any colleagues or the employer in the post, the EAT decided that, on the facts of this case, an employment tribunal had been right to conclude that the posting of the image was not done “in the course of employment” which is an essential element of employer liability under the EqA 2010.
The EAT particularly noted that it was not possible or even desirable to lay down any hard and fast guidance in respect of such conduct and that it should not incur employer liability under the EqA 2010, especially as the extent to which social media platforms are used continues to increase. Just as is the case with the physical work environment, whether something is done in the course of employment when done in the virtual landscape will be a question of fact for the tribunal in each particular case, having regard to all the circumstances.
In this case, a lay person would not consider that 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, was an act done in the course of employment.
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