When is an employer liable for online or social media harassment?

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What is a boon for a company’s marketing team can be a headache for HR managers. With the inevitable employee use of social media, email, and online content comes a wealth of legal and policy challenges. This is particularly true given the blurred lines of the personal and professional when it comes to social media.

So are employers liable if an employee harasses a colleague online? And what can HR professionals do to ensure they have the correct policies to minimise the fallout for the company should such harassment occur? Our HR and employment law experts, who regularly provide advice to our members, give some insight:

What is harassment?

Behaviour that is unwanted and has the effect of violating a person’s dignity or creating a hostile, intimidating or degrading work environment for that person constitutes harassment. Potentially harassing comments include those of a sexual nature or related to race, religion, national origin, disability or age. This is true regardless of whether or not the individual raising the complaint possesses the characteristic themself (e.g. the complainant does not need to be disabled to raise a harassment issue about a superior’s joke about disabled people).

Harassment can extend to online forums, such as social media and email (whether used personally or professionally).


When is an employer liable for harassment?

Employers are responsible for creating a safe workplace.

If one employee harasses another during the course of employment, the employer is legally liable unless it has taken all reasonably practicable steps to prevent that harassment from happening. This means that the employer does not need to know about the harassment in order to be liable for it.

With the advent of digital media, the definition of ‘workplace’ has expanded to include the online and the key issue would be whether the online harassment is in the course of employment. The ‘when’ and ‘where’ of the harassment may become blurred in this context. It is possible that comments uploaded outside of working time could constitute workplace harassment, depending on the context. For example, if an employee’s Facebook friends were mainly colleagues and managers, and the employee used Facebook routinely to discuss work, the employee’s Facebook page could attract a sufficiently work-related context to fall within the “course of employment” test.

On the other hand, if the employee’s Facebook friends were mainly personal friends rather than work colleagues and the employee mainly used the Facebook page for private matters, such as uploading pictures of their family or posting about their hobbies, this would be more of a “private” context.

What is best practice for prevention?

In order to safeguard their organisation and prevent harassment, HR should:

  • update bullying and harassment policies and/or social media policies to ensure that they explicitly warn employees against online bullying and harassment of their colleagues,
  • ensure that equalities training covers online harassment, and
  • discipline employees who cross the line

EEF offers a range of HR advice and guidance packages that take care of your handbooks, policies and procedures to  help you keep informed, stay compliant and mitigate risk.  To download a  free copy of our drafting guidance for your own social media policy, please enter your details below.

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