Employment law SOS: Issues surrounding social media

Yes, employers may potentially be held responsible. Social media is an extremely powerful tool for businesses, but it also has a reputation for facilitating cyber bullying. A recent study by academics from the University of Sheffield and Nottingham University found that cyber bullying (using modern communications technology such as email, text or web-postings to abuse people) has become as common in the workplace as conventional bullying. In addition, case law based on the Protection from Harassment Act 2007, which was originally intended as an anti-stalking measure, has established that employers can be held vicariously liable for acts of harassment – ie, bullying by employees against other employees carried out 'in the course of employment'. If an employee's comments on social media sites about another employee amount to discrimination, the employer could be held vicariously liable, even if these comments are made outside the workplace. In the case of Otomewo v Carphone Warehouse, two employees took the phone belonging to their manager and updated his Facebook status to read "finally came out of the closet. I am gay and proud". The Employment Tribunal found that this incident was in the course of employment and the employer was therefore vicariously liable for sexual orientation harassment carried out by these two employees. It is essential therefore for employers to have a social media policy that specifically addresses cyber bullying and makes it clear that employees who engage in such conduct will face disciplinary action or dismissal for gross misconduct. This, in combination with a strong anti-bullying policy, will help employers to rely on the 'reasonable steps' defence when defending discrimination and harassment claims arising in the context of the use of social media.