When does a bit of banter become something more?

It is Thursday morning, 32nd March 2021. You are back in the office for the first time in over a year. A colleague has left his desktop unattended. You notice he is also logged into his Facebook account, despite the company policy. 

Do you:

AReport the matter to your line manager as a breach of company policy.
BUpdate his Facebook status to: “Finally came out of the closet. I am gay and proud”
CLog him out.
DDo nothing.

If you answered anything other than D, then we might have a problem!

ARead How to Win Friends and Influence People.
BScroll down.
CWhat is your workplace policy on using others’ usernames? Scroll down.
DCongratulations, you still have a job!

Something more…

This is not an April Fools. Rather, this was a case before the Employment Tribunal in May 2012.  

Mr Otomewo was employed as a shop manager by Carphone Warehouse. He left his iPhone unattended. As a prank, two colleagues updated his Facebook status to:

           Finally came out of the closet. I am gay and proud.  

Mr Otomewo lodged a complaint, which he later withdrew. He was later dismissed for an unrelated matter. 

At the Employment Tribunal, Mr Otomewo’s claims of discrimination on grounds of sex and sexual orientation were dismissed. Although he succeeded on unfair dismissal, the Employment Tribunal assess his contribution at 100% and did not award any compensation. The claim of harassment relating to sexual orientation was, however, successful.

The Employment Tribunal held that the Facebook status was an unnecessary and unwarranted intrusion into Mr Otomewo’s private life and constituted harassment on grounds of sexual orientation. As an aside, he was heterosexual. Carphone Warehouse was held to be vicariously liable for the prank.  

Comment

Although it may be questionable as to whether such a prank would meet the UKSC field of activities test, the takeaway is clear. As an employer, it is incumbent on you to ensure the dignity at work of your employees. 

This applies as much today as any other. 

April Fools has come and gone; You’re the Fool for carrying on! 

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By Paul Sullivan FRSA

Creating unique, engaging content for your law firm clients