Was the posting of an offensive image on Facebook carried out 'in the course of employment'?
No, held the EAT, in Forbes v LHR Airport Limited.
The Claimant was a security officer. A colleague, DS, posted a discriminatory image of a golliwog with the caption, "Let's see how far he can travel before Facebook takes him off", on Facebook. One of her colleagues, BW (who was a Facebook friend), showed it to the Claimant (who was not). The Claimant raised a formal grievance which was upheld, and DS was disciplined. When he was rostered to work alongside DS, the Claimant complained and he was moved to another location without explanation.
The tribunal dismissed the Claimant's claims of harassment, victimisation and discrimination on the grounds of race, holding that DS had not acted in the course of her employment. She had not posted the image while at work, or on a work computer, it was shared amongst a private group which did not include the Claimant, and it made no reference to her employer.
The EAT dismissed the Claimant's appeal. Whether something is done in the course of employment, either in the 'virtual landscape' or the physical work environment, is a question of fact for the tribunal in each case having regard to all the circumstances. This is more difficult to assess with online activity, and where a personal social media account is used for work purposes that might create a connection to work. The alleged act of harassment was the posting of the image by DS rather than BW showing it to the Claimant, which had a closer connection to the workplace, and may therefore have led to a different result.
Thanks to James English of Ward Hadaway for preparing this case summary.