The recent news that a 17-year-old has been arrested after sending a malicious tweet to Olympic diver Tom Daley comes as a stark reminder of how hurtful online abuse can be and how quickly it can escalate.
The workplace is not immune from such abuse of social media either. A recent legal case turned the spotlight on the risks that arise should employees decide to bully or “troll” other staff online. And examples are not limited to social networking sites – cyberbullying can include malicious emails or texts, sharing compromising images or even screensavers featuring offensive content.
In the Teggart v Teletech case, a call-centre worker was dismissed after making offensive comments about a colleague on Facebook.
The comments suggested that a female employee had been sexually promiscuous with other colleagues. After a formal investigation by the company, Mr Teggart was dismissed for gross misconduct for bringing the company into disrepute and having harassed his colleague, who had reported feeling “upset, physically distressed and tearful” after discovering his post. Mr Teggart appealed to an employment tribunal, which threw out his claim for unfair dismissal.
Last year, Acas published the following guidance on the use of social media at work, which includes suggestions for drawing up appropriate use policies:
Bullying at work is nothing new, but comments posted online, or shared via email or another networking site, can reach a wide audience very quickly. The ease of access to social media both at home and at work also means that the line is increasingly blurred – Mr Teggart made the comments about his colleague on his personal Facebook profile after a few drinks at home, but his actions were still considered worthy of dismissal. Further, constant access to smartphones makes it easier than ever to post rumours, gossip or derogatory comments to social networking sites.
According to Ann Munro, an associate at the law firm Charles Russell, bullying via electronic means should be treated no differently to bullying offline. “It is still unacceptable behaviour, it is just being carried out via different means,” she says. “An individual subjected to online bullying may claim they have been harassed, which could lead to a legal claim for discrimination under the Equality Act 2010. Damages for a successful discrimination claim are uncapped and the award would be based on financial and non-financial losses (such as injury to feelings).”
Other personal claims employers could face as a result of cyberbullying include defamation, where the employer could be held jointly or vicariously liable where one of its employees defames another, or constructive dismissal. In the case of the latter, the employee could resign and then claim that they have done so as a result of a breach of contract by the employer, which has breached their mutual duty of trust and confidence.
The risks of not taking cyberbullying seriously are not just restricted to individual claims, either. Comments made about an employer on Facebook or Twitter could lead to reputational damage. There is also the risk of staff leaking confidential information, such as company financial results before they have been released to the markets.
There has been considerable debate over whether or not employers should draw up standalone social media policies, with some expressing concern that to control employees’ use of sites such as Facebook and Twitter is distrustful and counterproductive. But employment lawyers’ advice is very clear on this: having a policy in place will not only spell out to staff what is and is not acceptable when it comes to using social media, but it could also protect your company in the event that someone brings a claim.
“Our strong advice is that companies have a social media policy. Saying that you don’t need one is a nice sentiment, and your policy should always reflect the culture of your organisation, but you should at least have some hard and fast rules,” says Nicola Doran, a lawyer on the employment team at Osborne Clarke. “These should include rules on making discriminatory comments, defamatory comments and the release of confidential information.”
Doran also advises that companies have a good reporting line in place. Under the Equality Act, an employer could be held liable if it knew that one of its staff was being harassed but didn’t take reasonable steps to deal with it. “If something happens, have a conversation with the employee, investigate their claim, and go down the disciplinary route if necessary,” she says.
Whether you choose to have a discrete social media policy that covers cyberbullying or not, ensure that your disciplinary procedures or anti-bullying policies are joined-up, and that staff are aware that they encompass online as well as offline activity. Munro advises training staff on the content of the policies and what happens if they do not comply. “They should be made aware that failure to comply with the provisions will be treated in accordance with your disciplinary policy, and in serious cases may lead to dismissal. This should then be enforced in practice,” she says.
On a more informal level, discuss with staff what is and is not appropriate to share via social media. In organisations where using Twitter is a core part of their working day, for example, encourage staff to differentiate between their personal accounts and those they use solely for work. “Get staff to be clear on what’s personal and what are the views of the company,” says Doran.
Staff should also be aware of what they can and can’t do on smartphones: posting something to Facebook on a personal mobile phone might seem innocuous, but a defamatory comment made while the employee is on work business could leave the employer vicariously liable. Even personal computers carry a risk, as the Teggart case shows.
Ultimately, being as clear as possible with staff on what’s appropriate and joining up relevant policies will reap benefits, says Doran: “Where employers have had adequate provision for the consequences of any inappropriate social media use is where they’ve been protected. While 99 out of 100 staff will behave impeccably online, if one doesn’t and your company ends up liable, you’ll be kicking yourself.”