A work colleague ("Ms S") of the Claimant posted an image of a golliwog on her personal Facebook page and, when another colleague showed the image to the Claimant, the Claimant complained to the Respondent that racist images were being circulated in the workplace. The Respondent took disciplinary proceedings against Ms S and gave her a final written warning. When the Claimant was allocated to work with Ms S, he complained and was moved to another location. Thereafter, he was signed off sick, and he then issued proceedings before the ET alleging harassment, victimisation and discrimination. The ET concluded that Ms S's actions were not in the course of her employment, and that the Respondent had taken all reasonable steps to prevent the discriminatory act and was not vicariously responsible for Ms S's actions. The Claimant appealed on grounds including that the ET's conclusion, that the sharing of the image by Ms S on her Facebook page was not conduct in the course of employment, was perverse.

The EAT held that the conclusion reached by the ET was one that was open to it on the evidence before the ET, and so no error of law was established.