In the case of Forbes v LHR Airport Ltd the EAT had to consider whether the posting of an offensive image on Facebook was done "in the course of employment". If it was then the employer, subject to being able to demonstrate they had taken all reasonable steps to prevent the harassment, would be vicariously liable.
There is a considerable amount of case law available on what "in the course of employment" covers and it is not limited to what goes on in the office between 9am and 5pm. Where the alleged act takes place outside of the workplace it can though be more difficult to identify whether there is a sufficiently close connection with work such as to render the act as done "in the course of employment". That assessment can become all the more complicated when it occurs in the virtual landscape rather than a physical work environment.
In Forbes, a colleague, Ms Stevens, posted a picture of a golliwog on her personal Facebook account with the comment "Let's see how far he can travel before Facebook takes him off". Another colleague - identified in the judgement only as BW - was friends with Ms Stevens on Facebook and saw the image. Mr Forbes was not friends with Ms Stevens but BW showed him the image. Mr Forbes subsequently complained to his line manager that racist images were being circulated in the workplace. An initial investigation took place which didn't satisfy Mr Forbes so he raised a formal grievance which was upheld. Ms Stevens was disciplined and received a final written warning.
When Mr Forbes subsequently complained about having to work alongside Ms Stevens he was moved to another location. Mr Forbes saw this as victimisation and discrimination, was signed off sick and subsequently claimed harassment victimisation and discrimination before an employment tribunal. The tribunal dismissed the claim, finding that although posting the image was capable of giving offence on racial grounds, it was not done in the course of employment. The image had been shared privately amongst Ms Steven's friends list, it was not something she did at work and Mr Forbes was not on her friends list. The act of posting the image was therefore not one that the employer could be vicariously liable for.
Mr Forbes appealed, but the EAT agreed with the tribunal. Ms Steven's Facebook account was private, the image was shared among friends, one of whom happened to be a work colleague - BW - who took the step of showing the image to Mr Forbes. The tribunal had not made an error in concluding the sharing of the image was not done in the course of employment. The EAT did comment however that the outcome might have been different had the claim been made against BW, as his act of showing the offensive image to Mr Forbes was done in the workplace and might be said to have been done in the course of employment.
This case does not set a precedent that the posting of images on Facebook will never be "in the course of employment". The EAT were clear that they did not consider it possible or even desirable to lay down any hard and fast guidance in respect of these matters. As is the case in the physical work environment, whether something is done in the course of employment in the virtual landscape will be a question of fact for the employment tribunal in each case having regard to all of the circumstances.