Social media and employment: case study 1

Jenny Wotherspoon of Osborne Clarke continues a series of articles on the impact of social media on employers with a case study that looks at a situation in which two employees have used social media to cyber-bully another employee. 

Net-presents is an online gift retailer with 250 employees in the UK. Michael, an employee in the sales team, complains to Judith, the HR manager, that he is being bullied and harassed by Sam and Dave, two members of the same team. He says that they have posted derogatory comments about him on Facebook. He has also found out through a friend in another department that they excluded him from an informal team social event, which they arranged via Facebook. The company has an equal opportunities policy, which includes harassment, but no policy on social media use.

What should Judith do next?

Judith should speak to Michael and ask him if he would like to raise the matter formally. Assuming that Net-presents' equal opportunities policy does not include a means for addressing harassment complaints, she should give him a copy of its grievance procedure and advise him to make his complaint through this. If Michael decides to raise the matter formally, Judith should ask him to set out his concerns in writing and provide copies of the relevant Facebook postings and any other evidence.

Judith should ensure that Net-presents undertakes an investigation into the allegations in accordance with its grievance policy. It should interview Michael, Sam and Dave and any other team members who may be involved. It should also consider the relevant evidence, before deciding how to proceed. If evidence is needed from Sam and Dave's Facebook accounts, which Michael cannot access, it should ask Sam and Dave to provide this, as part of the investigation.

The company should also try to establish whether or not Sam and Dave have been posting entries about Michael during work time. This investigation is likely to include a search of relevant email accounts and computer records and should be carried out in line with the company's data protection and information technology policies. The company will need to ensure that it acts reasonably in carrying out these searches. In particular, it should avoid accessing emails that are clearly personal in nature, unless they obviously relate to the investigation.

Net-presents might decide to suspend Sam and Dave if there are reasonable grounds for it to believe that their presence at work could disrupt the investigation (for example, because it is concerned that they might destroy evidence or impede witnesses).

The investigation reveals that Michael's allegation that Sam and Dave have posted inappropriate comments about him is well founded. They have made references to his sexuality and commented that "he is not one of the lads so it would be much better if he doesn't come out with us". However, there is no evidence to suggest that they made the postings during work time.

During the investigation, Sam and Dave admit that they made comments about Michael on Facebook, but that they were meant as harmless "banter". They point out that they posted the comments outside work time and that there is nothing in the company's disciplinary procedure or other policies that specifies that this is not permitted. Nor is there anything that makes clear the company's position on social networking sites.

However, Judith does have on record that Sam and Dave signed copies of Net-presents' equal opportunities policy, which makes clear that harassment of others, including harassment because of sexual orientation, may be treated as gross misconduct.

John, Net-presents' sales director, asks Judith what potential claims Michael could bring against the company as a result of Sam and Dave's conduct? What should Judith advise?

The postings about Michael could well amount to harassment and cyber-bullying. Under the Equality Act 2010, harassment occurs where an individual engages in unwanted conduct related to a protected characteristic that has the purpose or effect of violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Sexual orientation is a protected characteristic under the Act. Derogatory comments relating to sexual orientation can amount to harassment even if Michael is not gay, or perceived by Sam and Dave to be gay. Social exclusion, of the kind perpetrated by Sam and Dave, can also constitute bullying and harassment, and, as they used social media to this end, this amounts to cyber-bullying (see Social media and employment: overview in this series for more details).

An employer is generally held liable for the acts of its employees where those acts are committed in the course of employment even if the acts were carried out without the employer's knowledge or approval.

In this scenario, Net-presents could argue that Sam and Dave's actions were not carried out in the course of their employment as the Facebook postings were made outside work and had no connection with work. However, even if this argument succeeds, there is a risk that the employment tribunal might find that the social event was connected with work. This is a grey area and one that would be judged on the facts of each case. However, informal drinks with colleagues immediately after work are likely to be viewed as an extension of work.

Employers can establish a defence against liability for harassment if they can show that they took reasonable steps to prevent harassment. This is likely to require employers to show that:

• they have a robust policy and procedure on harassment, which they have implemented;
• employees have been made aware of their obligations under the anti-harassment policy and procedure;
• managers have been trained in how to enforce the harassment policy and procedure; and
• they have dealt with complaints of harassment and taken disciplinary action where appropriate.

If Net-presents' equal opportunities policy is robust and it enforces it, it will be in a better position to defend a harassment claim if Michael brings one.

Michael might also resign and claim constructive dismissal on the basis that Sam and Dave's conduct amounted to a breach of the implied duty of trust and confidence for which Net-presents is responsible. Again, the steps that Net-presents has already taken to try to prevent employees acting in the way that Sam and Dave have, and how it addresses Michael's complaint, will impact on whether or not a constructive dismissal claim is likely to be successful.

In light of the serious nature of Michael's complaint, John asks Dan, the sales manager, to proceed with disciplinary hearings for Sam and Dave, which he does. Dan adjourns the hearings once he has heard the evidence, to consider what action to take against the two employees.

Before he imposes a disciplinary sanction against either Sam or Dave, or both of them, Dan should be satisfied that he has a reasonable belief in their guilt based on a reasonable investigation into their actions. The company may face some difficulty over the fact that the harassment took place through the medium of Facebook postings, given the absence of a social media policy or references to this type of conduct in the company's disciplinary policy. The absence of clear rules around social media can cause problems for employers that wish to take disciplinary action in this context (see Social media and employment: overview in this series for more details). For example, in Lerwill v Aston Villa Football Club Ltd ET/1304758/10, a football historian was dismissed for gross misconduct following postings he made on an unofficial fan forum. The employment tribunal held that the dismissal was unfair because the employer had failed to issue proper guidance that public comments were deemed to be made on behalf of the football club and could result in disciplinary proceedings or dismissal.

However, in Net-presents' case, the company is likely to be in a stronger position to take disciplinary action, given the evidence that Michael was deliberately excluded from an informal social event and the fact that both Sam and Dave signed the company's equal opportunities statement, which makes clear that sexual orientation harassment may be viewed as gross misconduct.

In determining whether or not to take disciplinary action, and if he does, what level of action is appropriate, Dan should take into account all the circumstances, including the penalties that Net-presents has imposed in similar situations in the past and whether or not Sam and Dave have clean disciplinary records or if either of them has a history of similar misconduct.

Is there anything that Net-presents can do to limit similar incidents in future and protect the company's position?

The company should ensure that it makes all staff aware of its rules relating to the use of social media, by adopting a social media policy. This policy should make clear that employees must not use social media to:

• post information that is confidential or that constitutes intellectual property;
• make comments that are negative about the company, its employees, clients or competitors;
• bully or harass other employees or other parties; or
• make comments that are discriminatory.

The policy should also make clear that it applies to the use of social media for business and personal reasons and regardless of whether or not social media sites are accessed via the company's systems or employees' own technology. It should also spell out that Net-presents will deal with conduct that breaches the policy under its disciplinary procedure. It should ask its employees to sign to confirm that they will abide by the terms of the social media policy.

The company should also decide whether or not to ban personal use of its information technology in work time. Alternatively, it could permit limited personal use provided that this does not interfere with employees' roles or responsibilities.

Finally, the company should update relevant policies that might be affected by issues arising from social media (for example, equal opportunities, disciplinary, grievance, information technology, data protection, and bullying and harassment policies) to include social media abuses within their remit.

Next week's topic of the week article will be another case study around social media and employment and will be published on 15 August.

Jenny Wotherspoon (jenny.wotherspoon@osborneclarke.com) is an associate in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.