Forbes v LHR Airport Ltd

Whether conduct is done in the course of employment under section 109(1) of the Equality Act 2010 is a question of fact, determined in light of all the circumstances and using the ordinary meaning of the words. There is no fixed boundary between workplace and non-workplace conduct, including conduct on social media. Relevant factors may include whether the act occurred at work, whether it concerned work, the equipment used, the audience, and the strength of the connection with employment. An employer’s disciplinary response is not determinative. For harassment under section 26, the tribunal may consider an apology made shortly after the conduct as part of the other circumstances. The reasonable-steps defence does not require every step suggested by a statutory code to have been taken.

The Claimant, a security officer, complained that a colleague’s private Facebook post displaying a golliwog image amounted to racial harassment, victimisation and discrimination. The post was shared with the colleague’s Facebook friends, including another work colleague, who showed it to the Claimant at work. The employer upheld the grievance, disciplined the colleague and later moved the Claimant to another location.

The Employment Tribunal dismissed the claims. It held that the Facebook post was not an act done in the course of employment, that the conduct did not amount to harassment within section 26, and that the employer had established the reasonable-steps defence under section 109(4). The central issue on appeal was whether the private Facebook post was conduct in the course of employment.

1. Appeal dismissed. The Tribunal was entitled to conclude that the colleague’s Facebook post was not done in the course of employment under section 109(1) of the Equality Act 2010. The question is one of fact, having regard to all relevant circumstances. The words are given their ordinary meaning, without importing a restrictive test from tortious vicarious liability: Jones v Tower Boot Co Ltd [1997] IRLR 168.
2. The relevant circumstances may include whether the act occurred at work, whether it concerned the employer or colleagues, whether employer equipment was used, the intended audience, and whether there was a sufficient nexus with work. The use of a private, non-work-related Facebook account, shared mainly with non-colleagues, supported the Tribunal’s conclusion. The fact that a colleague later showed the image to the Claimant at work did not make the earlier posting an act done in the course of employment.
3. A social-media act may nevertheless fall within section 109 where the account is maintained principally for communicating with work colleagues or is routinely used for work-related matters. No hard-and-fast rule can be laid down.
4. The employer’s disciplinary response was not determinative of whether the earlier act was in the course of employment. Post-event conduct and the employer’s policies could not establish the statutory connection by themselves.
5. The Tribunal did not err in applying section 26. It was entitled to consider the Claimant’s perception, the other circumstances, and whether it was reasonable for the conduct to have the proscribed effect. An apology made shortly afterwards could be relevant to that assessment.
6. The Tribunal was also entitled to find that the employer had taken all reasonable steps under section 109(4). The statutory code did not impose a checklist of mandatory measures. The employer’s serious disciplinary response could support the defence, notwithstanding the absence of evidence of publication, auditing or monitoring of its policies.
7. The Tribunal’s omission of the word “all” in one passage was an infelicity of expression, not an error of law. The appeal was dismissed on all grounds.

• Employment Appeal Tribunal: appeal from the Reading Employment Tribunal dismissed. The Tribunal’s decision sent to the parties on 18 January 2018 was upheld.