Firms must show they have strategy against cyberbullies
New media, new hazards: the workplace challenge from social media
Julie O’Neill is an associate with McDowell Purcell Solicitors
Before the dawn of Web 2.0, Norman Cook’s top three hit encouraged us to Turn On, Tune In, Cop Out. Fast forward to 2013 and the latter is no longer an option. In the era of social media, online actions and comments are plain for all to see, cannot be turned off, and in the case of social media, misuse or cyberbullying, can have serious risks for employers.
Most employers are surprised to learn that there is no single piece of legislation that makes bullying, let alone cyberbullying, unlawful. But that does not mean an employer is not exposed to claims. If employers fail to evolve with developments in technology and implement social media policies outlining what is expected of employees, they could be faced with claims brought by both victims and perpetrators of workplace cyberbullying.
While the case law and legislation are still developing in this area, an employee who has been the victim of cyberbullying may have a cause of action against his or her employer under existing common law principles and legislation, including:
l a claim for damages arising from a psychological/psychiatric illness suffered as a result of cyberbullying;
l where cyberbullying involves defamatory statements being made by an employee, the employer may be held vicariously liable for the defamation if there is a sufficiently close connection between the employment and the wrongdoing;
l a claim that the employer breached its statutory duties under the Health, Safety and Welfare at Work Act, 2005, by failing to provide a safe place of work;
l a claim in the Equality Tribunal under the Employment Equality Acts 1998-2011 if the cyberbullying amounts to harassment or discrimination on one of the nine discriminatory grounds;
l where the cyberbullying has become so intolerable that a victim cannot continue to work, they may resign and claim constructive dismissal in the Employment Appeals Tribunal.
Many employers find it hard to swallow that they could be liable for statements made by their employees outside of working time and on personal devices.
However, if the conduct is sufficiently connected with the employment relationship, it is likely that, based on current common law principles, the courts in Ireland will have no difficulty finding the employer liable.
In order to defend these claims, it is imperative that an employer can show it has procedures in place to prevent, detect and address cyberbullying. Turning a blind eye is not an option. In turn, employers often query whether they can discipline an employee for posting comments on social media outside of working time and on personal devices. An employer will be justified in disciplining an employee as long as fair procedures are applied and the sanction imposed is proportionate, if the conduct is sufficiently connected with the employment relationship and the employer has a policy in place which prohibits the conduct complained of.