Mr Forbes worked as a security officer for LHR Airport Ltd (LHRA). One of his colleagues was Ms Deborah Stevens who worked in a similar capacity.
On an unspecified date prior to 6 November 2016, Ms Stevens shared an image of a golliwog on her Facebook page, accompanied by the message “Let’s see how far he can travel before Facebook takes him off.” The image was shared with people who were on Ms Stevens’ list of Facebook friends. One of those friends was a work colleague, referred to here as BW. Mr Forbes was not on that list.
On 6 November 2016, BW showed the image on Ms Stevens’ Facebook page to Mr Forbes. He was shocked and appalled by the fact that Ms Stevens had posted this image and complained to his line manager that racist images were being circulated in the workplace. This escalated into a formal grievance.
The grievance was investigated by another manager, Mrs Branda Bowles. Having spoken to both Mr Forbes and to Ms Stevens, Mrs Bowles decided that the grievance should be upheld. A disciplinary investigation into Ms Stevens’ conduct was commenced. It appears that Ms Stevens was contrite when the offensive nature of the image was explained to her. Notwithstanding that, Ms Stevens was disciplined and received a final written warning for conduct which was considered to be in breach of the dignity at work policy.
On 4 December 2016, Mr Forbes was posted to work alongside Ms Stevens. He raised a concern with his union representative that he was being required to work alongside Ms Stevens even though his grievance against her had been upheld. He was thereafter moved to work at another location without any explanation.
This upset Mr Forbes as he felt that he was being victimised and discriminated against because of the fact that he had done a protected act, namely complaining about the image on Ms Stevens’ Facebook page. Mr Forbes was signed off sick the following day and did not return to work until 27 April 2017. Shortly prior to his return to work on 14 March 2017, he issued proceedings before the Tribunal alleging harassment, victimisation and discrimination.
Employment Tribunal
The Employment Tribunal dismissed the claim. Whilst it found that Ms Stevens had shared an image that was capable of giving rise to offence on racial original grounds, Ms Stevens’s actions in sharing the image on Facebook were not done ‘in the course of employment’ and was therefore not one for which the respondent could be liable.
The tribunal also concluded that the sharing of the image did not in any event constitute harassment.
Mr Forbes appealed to the Employment Appeal Tribunal.
EAT Decision
The EAT dismissed the appeal.
