What happens if one of your employees hijacks another employee’s Facebook account?
You could be liable if the actions fall within the course of employment, an Employment Tribunal has found.
Abraham Otomewo alleged that he had been harassed on the grounds of sexual orientation by two colleagues who had used his iPhone without permission. They managed to get into his Facebook account and updated his status to read “Finally came out the closet. I am gay and proud”.
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.
He alleged that his employer, Carphone Warehouse, was responsible for this harassment.
What the Tribunal Said
The tribunal in this case was very quick to find that Mr Otomewo was embarrassed by the Facebook comments. Since they were made in the course of employment with the company, the Employment Tribunal said the employer was liable.
“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.”
“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 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.”
The Tribunal will reconvene at a later date to decide how to penalise Carphone Warehouse for the Facebook comments made by their staff.
Why was the Tribunal so hard on the Employer?
Employers can be held liable for discriminatory acts by their employees 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. This is known as vicarious liability.
The test is 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.
What you need to do
In order to avoid liability for similar claims, you must take reasonable steps to prevent this kind of discrimination in your workplace.
The reasonable steps should as a minimum include an equal opportunities policy which should be clearly communicated to employees. We also recommend a suitable social media policy.
Suitable policies should include an explicit statement 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.
Where necessary, you should discipline employees who breach the policy.
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 finally . . .
Please feel free to call me on 01604 601 575 for help with:-
- Drafting a social media policy or an equal opportunities policy;
- Taking Disciplinary Action against a member of staff
- Avoiding workplace harassment.
Or complete the form below and we will call you.