Employer liable for joke ‘outing’ on Facebook

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An employment tribunal in south London has found an employer liable for its employees’ joke ‘outing’ of their manager on Facebook.

The tribunal found that the actions of the fellow employees, logging into a manager’s Facebook account and updating his status, fell “within the course of employment”.

Abraham Otomewo, manager of the Carphone Warehouse in Lewisham was sacked for “gross misconduct” in January 2011 for selling multiple Pay as You Go packages to single customers. The tribunal accepted he should have been dismissed for the misconduct.

However, Otomewo further alleged that he had been harassed on the grounds of sexual orientation for the status update.

Staff at the shop had logged into his iPhone and, impersonating him, updated his status to say: “Finally came out the closet. I am gay and proud”.

The tribunal said the employer should be liable, saying: “The actions were done at work, during working hours and involved dealings between staff and their manager.”

Out-Law points out that employers can be liable for discrimination on the part of their employees in the course of their employment, unless they take all reasonable steps to prevent it.

Employment law expert Selwyn Blyth of Pinsent Masons said: “The tribunal in this case was very quick to find that Mr Otomewo was embarrassed by the Facebook comments, and that they were made in the course of both his and his colleagues’ employment with the company.

“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.”

Mr Otomewo was not himself gay and said he was embarrassed by the status update, which was visible to friends and family.

The tribunal said it recognised “that there are prejudices against gay people currently in society. The comments made by the Claimant’s work colleagues were intrusive into his personal life in a public forum”.

Blyth suggested employers could absolve themselves of responsibility for incidents like this with a social media policy or by reminding employees to log out of social media accounts and secure their phones.

Acknowledging that Mr Otomewo should have been dismissed for his misconduct, the tribunal will meet again to determine a penalty for Carphone Warehouse regarding the ‘outing’ on Facebook.