E-mail can cause employers to be sued for bullying or sexual harassment, it can lead to defamation claims for cyber libel and it can enable employees to unwittingly infringe third party intellectual property rights, a Dublin conference recently heard.
Mr Jim Trueick, director of the employment law unit at A&L Goodbody solicitors, presented a paper on the obligations that arise for employers and employees when e-mail is used in the workplace at a conference organised by the Waterford-based EAP Institute.
"Vicarious liability can be visited on the employer for its failure to address issues of bullying or harassment, including sexual harassment." While this danger existed before the advent of e-mail, the possibility of misuse or abuse of e-mail "creates a further exposure of risk on the employer", he said.
"It is unlawful for an employer or an employee in the course of their employment to sexually harass or bully another employee. It is easy enough to envisage how the sending of an explicit, suggestive or abusive e-mail to an employee might constitute sexual harassment or bullying. Hard copies of e-mails could be used as evidence to support an employee's claim that he or she has been sexually harassed.
"Employers will also be aware that bullying at work is a major contributor to stress-related illnesses. An employee could claim to have incurred a stress-related condition as a result of a barrage of e-mails from colleagues at work and claim a breach of duty of care by the employer to provide a safe place of work," Mr Trueick said.
Moreover, employers could fall foul of the Employment Equality Act 1998, which introduced new grounds for discrimination.
"Under the definition of harassment and sexual harassment provided in the Act, such can include the `circulation of written words, pictures or other material' which a person may reasonably regard as offensive. The Act further provides that an employer would be liable for an employee's discriminatory actions unless the employer can show that he took reasonable steps to prevent or reverse the harassment," he said.
Citing sample cases, he said that in one British case, a female employee felt uncomfortable with the pornographic images downloaded by male employees in her office. She resigned and claimed sexual harassment. A tribunal found against the company because it had failed to take action to prevent harassment.
Warning that the apparent intimacy of e-mail can occasion employer liability, he said: "Employees are sometimes prepared to make statements in an e-mail which they would not make in a formal memorandum or letter."
Already there have been cases of cyber libel. And given that email can be transmitted across different jurisdictions, several different laws on defamation could potentially apply, he said.
Mr Trueick's paper presented specific steps that an employer can take to minimise exposure to litigation. It proposed suggested headings for a company's e-mail policy, such as:
warnings to be included in the policy;
never send abusive or defamatory messages;
never send strictly confidential messages;
do not download, copy or transmit to third parties the works of others without their permission, as this may infringe copyright;
do not view or download offensive or pornographic literature on office equipment.
The full conference papers are available, price £65 (€82.53), from the EAP Institute, 143 Barrack Street, Waterford. Telephone: +353 51 855 733. Email: eapinstitute@eircom.net
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