Unwanted social media comments could render employers liable for unlawful harassment
The case of Otomewo v Carphone Warehouse Ltd, ET/2330554/2011 demonstrates that employers may be liable for unlawful harassment under the Equality Act 2010 if employees bully a colleague because of a protected characteristic on social media.
In the case of Otomewo v Carphone Warehouse Ltd, ET/2330554/2011 Mr Otomewo, who was a manager at a Carphone Warehouse store, had his mobile phone taken by two employees, who posted a comment on his Facebook status update as follows: “Finally came out of the closet. I am gay and proud.”
Mr Otomewo subsequently complained about the Facebook comment and was later dismissed by Carphone Warehouse because of (unrelated) allegations of sexual harassment that had been made against him. He subsequently brought an Employment Tribunal claim for sexual orientation harassment, direct sexual orientation discrimination, direct sex discrimination, and unfair dismissal.
Mr Otomewo – who is not gay and whose colleagues knew he was not gay – gave evidence at the Employment Tribunal merits hearing that he had been “embarrassed” and “distressed” by the Facebook comment as it could be seen by his family and friends. The Tribunal, in its Judgment, described the actions of Mr Otomewo’s colleagues as an “unnecessary and unwarranted intrusion into his private life on public space”.
The Employment Tribunal found that Mr Otomewo had been harassed on the grounds of his sexual orientation harassment as he had been subjected to unwanted comments related to sexual orientation which had (the Employment Tribunal accepted) the effect of humiliating him. Following on from the judgment of the Court of Appeal in Edwards v Thomas Sanderson Blinds Limited  IRLR 206 CA, protection from harassment extended to persons who were not, and were not believed to be, of a particular sexual orientation where the vehicle for bullying that person was sexual orientation as the purpose of the relevant legislation was to protect persons being harassed on the grounds of sexual orientation (whether this was imaginary or not).
The Tribunal also found that Carphone Warehouse were liable for the harassing actions of Mr Otomewo’s colleagues as Facebook status comment had been made by his colleagues in the course of their employment (as it had taken place at work, during working hours, and involved Carphone Warehouse’s management staff).
The case of Otomewo v Carphone Warehouse Ltd, ET/2330554/2011 shows that employers can be liable for acts of unlawful harassment under the Equality Act 2010 by their employees on Facebook or other social media (if that harassment relates to another employee, and is communicated at work during work hours). Although policing employees’ use of social media at work may seem to be a potentially administratively burdensome for employers, employers can protect themselves from liability for harassment through a “s.109 defence” – by implementing social media and equality policies at work, and training their employees in those policies. Employers should also take swift action to investigate any complaints of harassment that are made in the workplace and to produce quick and fair outcomes to these (as employers risk potential constructive dismissal claims if they fail to do so).
Summary and recommendations:
- Sexual orientation harassment can occur even if those carrying out the harassment know that the victim is not gay
- Employers should ensure that they have a comprehensive and effective social media policy that makes it clear that bullying through social media could result in disciplinary action
- Employers should thoroughly train their employees in their equal opportunities policies
Employers should make it clear that discrimination on the grounds of a protected characteristic (such as race, religious belief etc.) could occur even if the victim does not have the protected characteristic alleged by the perpetrator, and the perpetrator knows this