James Major, partner and Corinna Harris, professional support lawyer in Clyde & Co’s London office explain how employers should respond to incidents of work-related cyberbullying.

Many employers have been faced with a situation where an employee has made derogatory comments about a colleague on Facebook, which were posted outside working hours, or a situation where derogatory comments have been made about the company on Facebook or another social media site. It is often difficult to know what steps you can, and should, take.

With the phenomenal rise of social media – there are currently 34 million individuals in the UK who are regular users of Facebook and 15 million active users on Twitter – incidents of inappropriate and abusive behaviour on social media sites have increased significantly in the last few years. In light of this, and the increasing publicity surrounding incidents of cyberbullying, such as the Twitter abuse against Stella Creasy MP earlier this year, companies need to make sure that they are aware of what obligations they have to protect their employees, especially where the cyberbullying occurs outside the working environment.

In spite of the increase in incidents of cyberbullying, there is only limited guidance from the courts and tribunals on the issues these incidents raise. This is because only a relatively small number of cases involving the misuse of social media have been heard by employment tribunals, and there are very few Employment Appeal Tribunal or Court of Appeal decisions on these cases. However, what is clear from the decisions so far is that an employer with a clear social media policy will be in a much better position to take action than one without. So until there is further guidance, it is advisable to:

  • Have a comprehensive social media policy which makes clear to employees the approach the company will take to the misuse of social media both in and outside the workplace
  • Communicate this policy effectively to all employees
  • Treat social media-related misconduct in the same way as any other form of misconduct

Implications for employers

Employers should not disregard an employee’s conduct just because it happened outside work. Employers are vicariously liable for acts by their employees which occur in the course of their employment. Tribunals generally take a broad view as to what is in the course of employment, so comments posted on a social media site could meet this test.

In any event, in some situations, failing to act against cyberbullying doesn’t just put employers at risk of significant claims (including claims for harassment or discrimination, for breach of statutory health and safety duties for failing to provide a safe place of work, or personal injury claims for psychological damage) but it will often result in an unpleasant work environment, with low morale and high absenteeism among the workforce.

What steps should employers take?

Whether or not you are able to take disciplinary action against an alleged bully will of course depend on the particular facts and circumstances, such as the nature of the comments that were posted, the relationship between the individuals (both at work and on social media) and any other factors linking it to their employment. But you should certainly investigate the complaint and, if the derogatory comments made on Facebook are or may be in breach of your policies on social media and workplace bullying, you should commence disciplinary proceedings and deal with it in the same way as you would any other misconduct issue.

The key issues to consider, and the steps you should take to deal with alleged incidents of cyberbullying, are:

  • What do the company’s social media policy and anti-bullying policy say?
  • Has the social media policy been communicated to all employees?
  • Could the comments posted on Facebook be in breach of these policies? Were the comments serious enough to amount to bullying and harassment or are they no more than workplace gossip (the Tribunals accept that some level of work-related gossip or banter on social media sites is inevitable and appropriate)?
  • If you believe the comments may breach your policies, you should follow the disciplinary process as you would with any other misconduct incident
  • The employee’s conduct both before the incident and subsequently may also be relevant to whether a decision to dismiss the employee is reasonable. Are there any mitigating circumstances? There could be where, for example, the employee has a clean disciplinary record, they apologise for their actions and quickly remove the offensive post

Ensure that your treatment of the employee is consistent with how you have treated other employees in similar circumstances. Differential treatment may be justified where the employees’ roles are different, but only where there is a logical link between the employee’s conduct and their role.

As with all disciplinary processes, it is important to give the correct label to the employee’s wrongdoing, and the reason for their dismissal (for example, do not rely on damage to the Company’s reputation unless this has occurred or is likely). Otherwise you run the risk that the dismissal will not be fair.