S.109(1) of the Equality Act 2010 makes an employer liable for the acts of an employee done “in the course of employment”. In Forbes v LHR Airport Ltd, F’s colleague, 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, who showed the Facebook post to F. An ET dismissed F’s harassment claim. Ms S was not in work when the image was posted, no reference was made to the employer or its employees and the employer’s equipment was not used to share the image. Therefore, while the image could give rise to offence on racial grounds, Ms S’s act of posting it was not an act done in the course of her employment.  The EAT agreed. Whether or not an act is in the course of employment is a question of fact for the ET to determine having regard to all the circumstances. In this case, Ms S used her private Facebook account outside work, the image was shared amongst her Facebook friends, who did not include F, but who did include a work colleague, BW, who then showed the image to F.

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