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Employer liable for Facebook harassment by employees

The recent employment tribunal case of Otomewo v Carphone Warehouse Ltd has found that employers can be liable for the actions of employees on social networking sites if they occur “in the course of their employment”.

Mr Otomewo was a manager in a Carphone Warehouse shop. Two members of his staff took his smart phone, which was in the shop’s back office, without his permission. They used his mobile phone to post a status update on his Facebook page saying “Finally came out of the closet. I am gay and proud.”

The tribunal acknowledged that Mr Otomewo was not gay and did not believe that his colleagues thought he was gay, but also accepted that he was embarrassed and distressed by the status update because the comments were in public view and could be seen by friends and family.

The tribunal found that this was harassment on the grounds of sexual orientation and that Carphone Warehouse were liable for the entries made on Mr Otomewo’s phone. The entries were made in the course of employment, the employees’ actions took place at work during working hours, and involved dealings between staff and their manager.

A defence to allegations of harassment is that the employer took all reasonable steps to prevent the employee from doing the discriminatory act. A clear social media policy, highlighting that disciplinary action may be taken in the event of a breach of the policy, coupled with documented management training, may assist an employer in defending this type of claim. This case also reminds employers that sexual orientation discrimination can occur, even where an employee is not gay, and his harassers do not believe him to be gay.

I would be interested to hear whether you do anything in your business to minimise the risk of these sorts of claims?

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