Ms S posted an image of a golliwog on her private Facebook page with the caption, "Let's see how far he can travel before Facebook takes him off". The image was shared with Ms S's list of Facebook friends, including her colleague, BW. BW showed the Facebook post to Mr Forbes. Mr Forbes complained of harassment by Ms S to his employer, London Heathrow Airport. Ms S apologised and she received a final written warning from the airport.
Thereafter, Mr Forbes was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. He made a complaint of harassment, victimisation and discrimination.
The Employment Tribunal found that, although Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable.
Mr Forbes appealed to the Employment Appeal Tribunal. The EAT dismissed Mr Forbes appeal and held that section 109(1) of the Equality Act renders an employer liable for the acts of an employee done "in the course of employment".
Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S's act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague who took the subsequent step of showing the image to Mr Forbes at work.
The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to Mr Forbes was done in the workplace and might be said to have been done "in the course of employment". However, that was not the complaint that the Tribunal had to consider.