In Otomewo -v- Carphone Warehouse 2012, an Employment Tribunal has held that the actions of employees who took their manager’s iPhone without his permission and updated his facebook status to read “Finally came out the closet. I am gay and proud.” constituted harassment on the grounds of sexual orientation.
The Employment Tribunal followed the case of English -v- Thomas Sanderson Blinds 2009 where the Court of Appeal held that homophobic banter could be harassment even where the victim was not known to be gay. The Tribunal found that, as a matter of fact, the Claimant was not gay and did not believe that his colleagues thought that he was gay. In making the finding that the employee was harassed, the Tribunal took into account that the comments were displayed to people who were friends and family of the Claimant and were an unnecessary and unwarranted intrusion into the Claimant’s private life in a public space. The Tribunal was satisfied that the Claimant was embarrassed and distressed by the comments and there was no background evidence of the Claimant or others engaging in this type of banter.
Interestingly, the Employment Tribunal found that the actions by the employees were within the course of employment (and therefore the Respondent employer was liable for the actions of the employees) as the actions were done at work, during working hours and involved dealings between employees and their manager.