I recently came across this case of the London South Employment Tribunal of 19th June 2012 whilst doing some research for a presentation I am doing for Legal Island later this year.
The UK case of Otomewo v Carphone Warehouse  EqLR 724 again demonstrates that employers can be held vicariously liable for discriminatory acts by their employees towards colleagues that happen in the course of their employment, unless the employer can show that it took “all reasonable steps” to prevent the employee from performing the act. What is interesting about this case is that it concerned a “hijack” of an employee’s facebook account by colleagues who updated his “status” without his consent.
In this case an employee Mr. Otomewo was dismissed from his role as manager of the Lewisham branch of mobile phone store Carphone Warehouse for “gross misconduct”. It was alleged that Mr. Otomewo dismissed for selling multiple ‘pay as you go’ mobile phone handsets to the same customers, going against a Carphone Warehouse policy. The Tribunal found that the dismissal was unfair due to procedural failures.
As part of his claim, Mr. Otomewo alleged that he had been harassed on the grounds of sexual orientation by two colleagues who had used his iPhone without permission to update his Facebook status to read “finally came out the closet. I am gay and proud”. It is unclear from the judgement as to whether the claimant’s colleagues had to overcome passwords or other security measures to update his status on his iphone.
The Tribunal in this case held that “the actions were done at work, during working hours and involved dealings between staff and their manager,” and that “in all the circumstances the Tribunal considered that this matter fell within the course of the employment.” The Tribunal noted that Mr. Otomewo was embarrassed by the Facebook comments which could be seen by family and friends (and were untrue), and stated that “the test for whether an employer can be found liable in these circumstances is whether the employment relationship and workplace of the parties gave them the opportunity to do what they did.” The Tribunal further stated “”The Facebook entry was made on a public forum via the internet and was displayed to people who were friends and family of the Claimant……….the comments made by the Claimant’s work colleagues were intrusive into his personal life in a public forum.”
We await the Tribunal’s decision at a later date as to how it will penalise Carphone Warehouse for the posted comments. Yet another timely reminder to employer’s to update their social media policies.