An employer was not liable for harassment under Ss.26 and 109 of the Equality Act 2010 when an employee posted a racially offensive image on Facebook and shared it with a colleague

Forbes -v-LHR Airport Ltd UKEAT/0174/18

A colleague of the Appellant, 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 another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Appellant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Appellant complained to the Tribunal of harassment, victimisation and discrimination.

The Employment Tribunal dismissed the complaint. Whilst it found that 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. The Appellant appealed.

Held (dismissing the appeal) 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: Jones v Tower Boot Co Ltd [1997] IRLR 168 applied. 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, BW, who took the subsequent step of showing the image to the Claimant 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 the Appellant 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.

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