How important is legal advice when submitting Tribunal paperwork?
Posted on 19th November 2019
We have already written about the case of Forbes v LHR Airport and employers’ liability for employees’ social media posts, but the case also demonstrates how important it is to get legal support with making your claim. Here the claimant’s case failed, in part, because of how the claim form was completed.
What is an ET1 form?
To start a claim, claimants must fill in an ET1 form setting out the basis of their claim. It is important to explain the claim clearly, but also precisely – covering all the issues that the claimant bases his or case on.
Forbes v LHR Airport
Ms S, an employee of LHR Airport, posted a racially offensive picture on her private Facebook account, shared only with her friends list. Ms S’s friends list included a colleague at LHR Airport, BW, who went on to show the picture to Mr Forbes. Mr Forbes was a colleague of both Ms S and BW, but was not ‘Friends’ on Facebook with Ms S. Mr Forbes made a tribunal claim for harassment, victimisation and discrimination in relation to Ms S’ post.
One decision for the Employment Appeals Tribunal was whether the company was vicariously liable for Ms S’s behaviour. An employer can, in certain circumstances, be held responsible for the actions of its employees. While it was accepted that the image Ms S posted could give rise to racial offence, an employer is only responsible for acts done ‘in the course of employment’.
The Employment Appeals Tribunal upheld the original Tribunal’s decision that Ms S’s post was not made in the course of her employment, and so LHR Airport was not vicariously liable for the harm caused to Mr Forbes.
Importance of getting help with the tribunal process
The outcome may have been different if the claim had included an argument about BW sharing the picture. As BW had shared the post within the workplace, on work time, the Tribunal accepted that it was possible that BW’s actions could have been considered ‘in the course of employment’. LHR Airport could have been vicariously liable, and Mr Forbes’s claim could have succeeded. The Employment Appeals Tribunal went so far as to say it was ‘unsatisfactory’ that this issue was not fully addressed. However, the Tribunal was not wrong to focus only on the issues raised by the complainant. The Tribunal is only required to consider issues raised in the ET1 form. In this case, the form focussed on Ms S’s actions, with no complaint about BW’s actions.
An opportunity was missed when the claim was prepared to refer to an issue that may have made a significant difference to the claim’s outcome. Specialist legal advice when preparing the claim would have picked up on the point.
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