Cyber Bullying Workplace - New Media, New Risks

Julie O' Neill explores how employers can be proactive in relation to the rise of cyber bullying despite the current lack of legislation on the topic. A number of stories have been reported in the media recently involving cyber-bullying. Tragic examples include the suicides of Phoebe Prince and the two sisters in Donegal. More recently, 28 students in Limerick were suspended for “liking” a comment made by a fellow student concerning their teacher on Facebook. If employers fail to keep pace with developments in technology and neglect to take preventative and remedial action, they could be faced with claims brought by both victims and perpetrators of cyber-bullying in the workplace. Cyber-bullying is a developing area of law in Ireland. In fact, most employees are surprised to learn that there is no single piece of legislation that makes bullying, let alone cyber-bullying, unlawful. Consequently, it is necessary to look to recognised common law principles and various pieces of legislation to establish whether a victim of cyber-bullying has a cause of action against his or her employer. Causes of action may include:

• a claim in the civil courts for damages arising from a psychological / psychiatric illness suffered as a result of cyber-bullying
• where cyber-bullying involves defamatory statements being made about an employee, the employer may be held vicariously liable for the defamationif there is a sufficiently close connection between the employment and the wrongdoing
• a claim that the employer breached its statutory duties under the Safety, Health and Welfare at Work Act 2005 by failing to provide a safe place of work
• a claim under the Employment Equality Acts 1998 – 2011 if the cyber-bullying amounts to harassment or discrimination on one of the nine discriminatory grounds
• Where the cyber-bullying has become so intolerable that a victim of cyber-bullying feels they cannot reasonably be expected to continue working for the employer, they may resign and claim constructive dismissal in the Employment Appeals Tribunal under the Unfair Dismissals Act 1977-2011
• Understandably, many employers find it difficult to accept that they could be liable for statements made by their employees outside of work and on personal computers/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 in finding the employer vicariously liable. In order to defend these claims, it is imperative that an employer can show that it has procedures in place to prevent, detect and address cyber-bullying. 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 work and on personal computers/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 (UD643/2007), 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 was disproportionate, the Tribunal had no difficulty with the principle that the comments deserved disciplinary action. However, employers do need to exercise caution. In Smith v Trafford Housing Trust [2012] EWHC 3221, 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 the Trust’s Equal Opportunities Policy, which required employees to treat their work colleagues with dignity and respect, as the posts were judgmental and liable to upset colleagues. The Trust argued that, because 45 of the employee’s Facebook friends were fellow employees, this created a work related context sufficient to attract the provisions in the Policy. The Court held that the employee’s Facebook account 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. This case can be distinguished from the former case as, in the former case, the comments were directed at an identifiable employee as opposed to a general group in society. It is expected that, with the exponential growth of social media, 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 has recently concluded public hearings on the topic and a report is expected to be issued in mid to late June 2013. It will be interesting to see what, if any, proposals are formulated by the Committee. Until legislation and/or guidelines are published, employers are advised to:

• Prohibit any form of bullying, including cyber-bullying, 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 in the Employment Unit at McDowell Purcell Solicitors. Contact Julie Email: joneill@mcdowellpurcell.ie Phone: +353 1 8280646