Otomewo v Carphone Warehouse Ltd ET/2330554/2011
Date added: 23 July 2012
sexual orientation discrimination | heterosexual complainant | harassment | social media
This decision is a reminder to employers and employees that it is possible for a heterosexual employee to be subjected to sexual orientation discrimination, even if the harasser knows that the employee is not gay.
It is well established that a heterosexual employee can be subjected to sexual orientation discrimination, even if it is known that he or she is not gay.
This might include harassing the employee by labelling him or her as "gay" as the basis of an insult.
Employers should make clear in their anti-bullying and harassment policies and in any equal opportunities training that any form of homophobic slur will not be tolerated.
Mr Otomewo, who was the manager in a Carphone Warehouse shop, was suspended and investigated for alleged sexual harassment of a female colleague. The employer would later dismiss Mr Otomewo for breaches of the company's customer sales rules, including those relating to the number of handsets that could be sold to one individual.
Shortly after Mr Otomewo returned from suspension over the allegations of sexual harassment, two members of his staff took his mobile phone without his permission while it was in the shop's back office. One of the employees used Mr Otomewo's mobile phone to post a comment on the status update on his Facebook page saying: "Finally came out the closet. I am gay and proud."
The employment tribunal later noted that Mr Otomewo is not gay and did not believe that his colleagues thought that he is gay. The tribunal accepted that he was "embarrassed" and "distressed" by the change to his Facebook status because the comments were put on a public website that could be viewed by friends and family. The tribunal described the actions of his colleagues as an "unnecessary and unwarranted intrusion into his private life on a public space". However, the tribunal also highlighted that, although initially upset, Mr Otomewo had made clear by the following day that he did not wish to pursue a formal complaint.
Mr Otomewo complained to the employment tribunal of, among other things, sexual orientation discrimination under s.26 of the Equality Act 2010. The tribunal referred to the Court of Appeal decision in English v Thomas Sanderson Blinds Ltd  IRLR 206 CA. It agreed with Mr Otomewo that:
- the comment placed on Facebook related to sexual orientation;
- there was "unwanted conduct", judging by his initial reaction; and
- the purpose or effect of the comment was reasonably viewed by Mr Otomewo as violating his dignity or creating an adverse environment, especially given that there was no culture of banter in this workplace.
The employment tribunal went on to make it clear that the employer could be liable for the entries made on Mr Otomewo's phone. The entries had been made by its employees in the course of their employment. The employees' actions took place at work and during working hours, and involved dealings between staff and their manager.
The employment tribunal went on to dismiss Mr Otomewo's claims of direct sex and sexual orientation discrimination. The tribunal rejected his argument that his complaint about the changes to his Facebook page was not investigated as thoroughly as the sexual harassment complaint that had been made against him by his female colleague. The tribunal concluded that any differences in treatment were a result of the claimant's decision not to pursue a formal complaint.
Finally, the tribunal upheld Mr Otomewo's claims for unfair dismissal because of procedural errors in the employer's disciplinary process, but reduced his compensation for unfair dismissal to zero.
- Good practice: Sexual orientation This section of the XpertHR good practice manual identifies the actions that employers can take to build an inclusive workplace for lesbian, gay and bisexual employees, while supporting the needs of the business.
- Bivonas LLP and other v Bennett EAT/0254/11 The Employment Appeal Tribunal (EAT) held that the employment tribunal was entitled to find that a gay barrister was discriminated against when he discovered a memorandum that made derogatory comments about his sexual orientation.
- Warby v Wunda Group plc EAT/0434/11 In this case, the EAT held that, in ascertaining whether or not words that reference a protected characteristic constitute unlawful discrimination, the conduct complained of must be seen in context.