“One of our employees has approached me to indicate that she has become aware of disparaging and offensive comments that have been posted by a colleague on his Facebook page. These comments apparently relate to the Employee’s gender and sexual orientation. However, as they have occurred outside of the workplace, I do not think that I can take any action under our Dignity at Work Policy. How do I handle it?”

It is important, in such circumstances, to consult your Dignity at Work Policy and ascertain the scope of the policy, having regard to actions done in the course of employment and whether this includes social media. Increasingly, more and more employers are implementing Social Media policies to govern such situations and linking these back to more traditional policies such as their Disciplinary policy and Dignity at Work policy.

This precise issue was considered recently by the Labour Court in Dublin Bus V McCamley EDA164 which was an appeal of Equality Tribunal decision DEC–E2015–100. The facts, in brief, were that the Complainant had referred a complaint to his Manager, under the Respondent’s Dignity at Work policy, in respect of derogatory comments posted about him by a colleague on Facebook. He was informed that as the matter complained of had occurred outside of the workplace, the company could not take any action under their policy.  However, the Head of HR of the Respondent determined that the matter should be dealt with in reliance of Rule 18 of the Respondent’s Company Rule Handbook, which provided that “employees shall not conduct themselves in any manner prejudicial to the reputation and welfare of fellow employees”. Arising out of that process, the perpetrator of the comments was disciplined and a sanction was imposed.

The Labour Court considered whether the Complainant had suffered harassment in the course of his employment, which would fix the Respondent with liability under the Employment Equality Acts. The Respondent had accepted that offending comments were posted in relation to the Complainant and that the author of the comments was an employee of the Respondent. However, the Respondent indicated that as these comments were posted outside of the workplace that the Complainant was not harassed in the course of his employment and that the offending conduct was unrelated to the Complainant’s employment. Therefore, the Respondent indicated that the Labour Court had no jurisdiction to entertain these complaints.

The Court firstly considered whether the offending conduct and the postings on Facebook constituted activity which arose in the course of the Employee’s employment. In this regard, the Court held that unlike vicarious liability, in the case of harassment there is no requirement to show that the wrong doer was acting in the course, or within the scope of his or her employment. Importantly, the Labour Court provided “it matters not that the harasser was off duty or at home when he posted the offending material. It is, however, essential that the victim suffered the harassment in the course of his or her employment”.

The Labour Court went on to comment that there must be some discernible connection between the harassment and the victim’s employment, in the sense that the victim suffered the harmful effects of the harassment while he or she was engaged in activity authorised by the Employer. The Court determined that the offending comments on Facebook were posted as a result of the Complainant’s capacity as an employee representative within the Respondent. In those circumstances, the Labour Court determined that the posting of the offending comments constituted harassment within the scope of Section 14A(7) of the Act.

In such circumstances, the Employer is rendered liable for that harassment unless it can avail of the defence provided at Section 14A(2) of the Act. In order to avail of the defence, the Court determined the employer must demonstrate that preventative measures were taken before the occurrence of the offending conduct occurred.

In the instant case, the Respondent had a policy against harassment and sexual harassment at work. However, it did not contain a provision specifically directed at preventing harassment through the use of social media. By invoking Rule 18 against the harasser, a disciplinary sanction was imposed against him. The Labour Court commented that while this rule may not be an adequate substitution for a well-defined policy against the use of social media as an instrument of harassment, it did protect employees from any form of prejudicial or harmful treatment by fellow employees.

In all of the circumstances the Court accepted that the Facebook comments subjected the Complainant to unacceptable personalised abuse in the course of his employment that no worker should be expected to tolerate. However, having regard to all of the evidence before them, the Court concluded that the Respondent could avail of the defence set down under Section 14A(2) of the Act and as a result the Respondent was not fixed with any liability. In those circumstances, the Court affirmed the decision of the Equality Tribunal and disallowed the Complainant’s appeal.

Conclusion

It is clear that the use of social media is increasingly common both inside and outside of the workplace. Employers should not expect traditional Employee handbooks and policies to deal with social media issues. It is important therefore to ensure that you have a policy in place which governs the use of social media and importantly that it links in with other policies in your organisation, particularly with regard to disciplinary issues.

Employees should be inducted and trained on these policies so that they are aware as to what constitutes acceptable conduct in your organisation. Dignity at work issues should always be dealt with swiftly and effectively. This is the only way that an employer can adequately demonstrate that it has taken preventive measures in defence of any equality or personal injury action that may arise.