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:

a claim for damages arising from a psychological/psychiatric illness suffered as a result of cyberbullying;

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;

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;

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;

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

.

Liability
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.

In the case of Emma Kiernan v A Wear Limited (2007), the employee was dismissed for misconduct for posting derogatory comments about her manager on Bebo. While the dismissal was ultimately found to be unfair on the grounds that the sanction of dismissal was disproportionate, the tribunal had no difficulty with the idea that the comments deserved disciplinary action.

Caution
However, employers do need to exercise caution. In Smith v Trafford Housing Trust (2012), the High Court in the UK found that an employee was entitled to express his views about gay marriage on Facebook and his employer had acted unlawfully when it demoted him for doing so.

The court rejected the trust’s argument that the posts breached its equal opportunities policy, which required employees to treat their work colleagues with dignity and respect. The trust argued that, because 45 of the plaintiff’s Facebook friends were colleagues, this created a work-related context sufficient to attract the provisions in the policy.

The court held that the plaintiff’s Facebook did not have the necessary work-related context to attract the relevant provision in the policy as it was clear he used Facebook for social rather than work-related purposes.

Customers can equally be affected by cyberbullying. Under new Central Bank advertising rules due to take effect this autumn, finance professionals will be restricted in how they use social networks to talk about financial topics. In fact, the Central Bank is proposing that firms consider whether such media are appropriate at all for advertising.

It is expected that a significant body of law will develop over the next few years. However, it is not expected that legislation will be introduced any time soon. Some efforts are, however, being made by the Government.

The

Oireachtas Joint Committee on Transport and Communications

held public hearings with various stakeholders, including Facebook, on the challenges arising from the growth of social media. It will be interesting to see what, if any, proposals are formulated by the committee when it issues its report in late June. Until legislation and/or guidelines are published, employers are advised to:

prohibit any form of bullying, including cyberbullying, as a part of a social media policy.

make it clear what types of behaviour are prohibited and what the consequences for breach of the policy will be.

communicate the policy to employees.

take remedial action where necessary.

Julie O'Neill is an associate with McDowell Purcell Solicitors, which is co-hosting a seminar on Wednesday at the Merrion Hotel, Dublin on social media and ecommunications in the workplace