Employers can be liable for Facebook harassment by employees

Employee A uses employee B’s work computer to update employee B’s Facebook status in a way that is discriminatory and amounts to harassment.  As their employer are you liable?  Yes, according to a recent Employment Tribunal case.

In Otomewo v Carphone Warehouse Ltd two members of staff took their manager’s smart phone from an office.  They used it to post a status update on his Facebook page saying “Finally came out of the closet.  I am gay and proud.”

The Employment Tribunal said the employers were liable because what the employees did was “in the course of their employment”.  Their actions took place at work during working hours, with work equipment, and involved dealings between staff and their manager.  This is not a new principle; there is a long line of cases involving liability for injuries and for accidents in vehicles used for work.

Another curious aspect of the case, and another thing to remember, is that Mr Otomewo was not gay, nor did his colleagues believe he was gay.  To be harassed for a Protected Characteristic it is not necessary to prove you have that characteristic.

What can you do to avoid liability?  It is a defence to allegations of harassment that the employer took all reasonable steps to prevent the employee from doing the discriminatory act.  In this case a clear social media policy, making it clear that disciplinary action may follow a breach of the policy, and anti-discrimination training might have been sufficient.

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