Employer liable for "gay and proud" Facebook status hijack of ex-employee by colleagues

Abraham Otomewo was dismissed from his role as manager of the Lewisham branch of mobile phone store Carphone Warehouse for "gross misconduct" in January 2011. In the context of his claim for unfair dismissal, he alleged that he had been harassed on the grounds of sexual orientation by two colleagues who had used his iPhone without permission to update Otomewo's Facebook status to read "finally came out the closet. I am gay and proud".

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.

"The actions were done at work, during working hours and involved dealings between staff and their manager," the tribunal said in its judgment. "In all the circumstances the Tribunal considered that this matter fell within the course of the employment."

Employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that the decision showed that the 'in the course of employment' test was really a question of whether the employment relationship and workplace created the opportunity for the behaviour to happen in the first place. It was irrelevant whether the employer knew that the conduct being complained of was happening or whether the employer condoned or sanctioned that conduct, he 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," he said. "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."

Otomewo was dismissed for selling multiple 'pay as you go' mobile phone handsets to the same customers, going against a Carphone Warehouse policy limiting such sales to prevent handsets being resold at a profit by the purchaser. Although the tribunal found that the dismissal was unfair due to procedural failures, it concluded that the company would have reached the same conclusion due to Otomewo's conduct even if it had conducted the procedures correctly.

However, it will reconvene at a later date to decide how to penalise Carphone Warehouse for the Facebook comments.

The two members of staff who posted the comments used Otomewo's iPhone while it was in the back office of the shop, although the judgment did not state whether they had to overcome a password or security code in order to do so. Although Otomewo was not gay and did not believe that his colleagues thought that he was he said that he was embarrassed by the comment, which could be seen by friends and members of his family.

"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 tribunal said in its judgment. "The Tribunal recognises 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 said that in order to avoid liability for similar claims, the 'reasonable steps' that companies must take should as a minimum include a suitable social media policy which should be clearly communicated to employees.

"Of course, the company must also be expected to discipline employees who breach the policy," he said.

"A suitable policy could include an explicit comment that this particular conduct should not happen, as well as a clear statement of principle regarding harassment on the grounds of a colleague's sexual orientation," he said. "It might also be worth pointing out that employees who bring personal technology, such as iPhones, into the workplace should be responsible for setting their own passwords or logging out of browsers, and perhaps that spot checks will be carried out to ensure that this is done."