Skip to content

Employment Law Speed Read – 15/07/19

In Forbes v LHR Airport Limited, the Employment Appeal Tribunal considered whether a racially offensive Facebook post was carried out "in the course of employment".


The Claimant’s colleague, Ms S, posted an image of a golliwog on her 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 which included another colleague, BW. The Claimant was not a Facebook friend of Ms S, but he was shown the image by BW.

The Claimant raised a formal grievance which was upheld and Ms S was given a final written warning. The Claimant was later rostered to work alongside Ms S and when he complained, he was moved to another location. He brought claims of harassment, victimisation and discrimination on the grounds of race.

Employment Tribunal

The Tribunal dismissed the Claimant’s complaints. Although Ms S had shared an image that was capable of giving rise to offence on racial grounds, the Tribunal found that Ms S had not acted in the course of employment. In reaching their decision, the Tribunal considered that Ms S was not at work when the image was posted, she had not made reference to her employer or any of their employees and had not used a work computer when sharing the image. Therefore it was not an act for which the employer could be liable.

The Claimant appealed.

Employment Appeal Tribunal

The Employment Appeal Tribunal dismissed the Claimant’s appeal, agreeing with the Tribunal that Ms S had not posted the image on her Facebook page in the course of her employment. The Employment Appeal Tribunal held that whether something is done in the course of employment will be a question of fact for the Tribunal in each case, having regard to all the circumstances. The words “in the course of employment” should be understood in their ordinary and natural sense and it was held that a lay person would not consider sharing an image on a private, non-work related Facebook page, with a list of friends that largely did not include work colleagues, as an act done in the course of employment.

The Employment Appeal Tribunal did consider that if the alleged act of harassment was BW showing the Claimant the image, then this could be regarded as something done in the course of his employment – but this was not the issue for the Tribunal. The Claimant’s complaints related to Ms S’s acts. In addition, the Employment Appeal Tribunal did suggest situations where the sharing of an image on a Facebook page could be found to be an act done in the course of employment, namely where the Facebook page is solely or principally maintained for the purposes of communicating with work colleagues, or is used for raising work related matters.

Finally, the fact that the employer considered it appropriate to take disciplinary action did not mean that the conduct in question was necessarily done in the course of employment.


This case provides useful guidance for employers, but it highlights that each case must be considered on its own facts and circumstances before establishing whether an act is done in the course of employment. It is a reminder of the importance of having adequate disciplinary/social media policies governing the rules on posting on social media both inside and outside of work.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

Follow us on LinkedIn

Keep up to date with all the latest updates and insights from our expert team

Take me there

What we're thinking