Tillman v Egon Zehnder Limited
The case of Forbes v LHR Airport Limited considers whether an employer is liable for harassment when an employee posted a racially offensive image on social media and shared it with a colleague.
Mr Forbes was employed as a security officer at LHR Airport Ltd. A colleague, Ms Stevens, posted a picture of a golliwog on her Facebook page together with the caption ‘Let’s see how far he can travel before Facebook takes him off’. The post was shared with Ms Stevens’s friends and some colleagues, one of whom showed it to Mr Forbes. He found it offensive and raised a formal grievance resulting in a disciplinary process taking place. Ms Stevens apologised to him and received a final written warning. Mr Forbes was required to work alongside Ms Stevens and, when he complained, he was moved to another location. He subsequently brought claims against LHR, including a claim for harassment.
The Employment Tribunal dismissed the claim on the ground that Ms Steven’s actions were not carried out ‘in the course of employment’ as the post was made outside of work and, as such, the employer could not be held to be vicariously liable for her actions. Although it was accepted that the image was offensive, it was also found that Ms Stevens had not intended to cause offence, especially in the light of her willingness to apologise. Therefore, the criteria to bring a claim of harassment under s 26 of the Equality Act could not be met.
The case was appealed to the Employment Appeal Tribunal which upheld the Tribunal judgment. It concluded that Ms Stevens’s actions were not carried out ‘in the course of employment’. It was correct to focus on the time and location of Ms Stevens’s actions in this case. However, it was noted that, with the increase in social media use, there inevitably would be cases in which sharing posts could be deemed to have happened in the course of employment notwithstanding it being outside of the work place and work hours (such as sharing an offensive post on a work-related Facebook page). The question of harassment was not addressed, although the EAT also agreed that an apology could be taken into account when considering whether Ms Stevens’s conduct had the purpose or effect of creating the hostile environment.
The learning point to be taken away from this case is that, whilst each case will be considered on its own facts, the tribunal appears willing to find it more likely that the employer would be vicariously liable where the media used is linked or overlaps with the working environment and reasonable steps to prevent the wrongful behaviour failed to be implemented.
The second case I would like to highlight this month is that of Tillman v Egon Zehnder Limited. This is a Supreme Court decision and considers whether unreasonably wide wording can be severed from post-termination covenants.
This case involves an employee, Ms Tillman, who had worked as a consultant for Egon Zehnder (EZ) since 2004. She began her career with them at entry level. In 2012, she was appointed to co-Global Head of the Financial Services Practice Group at Egon Zehnder (EZ). Her contract of employment was never updated from her entry role position and therefore remained unchanged.
In January 2017, Ms Tillman resigned on notice and EZ terminated her employment the week after, paying her in lieu of notice. Ms Tillman notified EZ that she intended to start working at Russell Reynolds Associates (a firm conducting business similar to EZ’s). EZ issued proceedings and sought an injunction on the grounds that this would breach Ms Tillman’s six-month non-compete clause. The clause broadly stated that Ms Tillman could not be engaged, concerned or interested in any competing business for a period of six months.
Ms Tilman argued that the clause was void for being wider than reasonably required to protect legitimate business interests and it also prevented her from having minor shareholdings in competing businesses for investment purposes.
The High Court disagreed with Ms Tillman on both grounds but the Court of Appeal overturned this decision. It held the non-compete restriction was impermissibly wide and therefore void. The Court of Appeal refused to sever the words ‘interested’ from the rest of the clause on the basis that, amongst other things, it constituted a single covenant which had to be read as a whole.
The Supreme Court agreed that the words ‘interested in’ would prohibit Ms Tilman from holding small investments but allowed the appeal on the grounds that, unlike what the Court of Appeal found, those words could be severed from the restrictions.
