The danger to employers from workplace trolls
Tina Wisener, September 18, 2013
You will have been hard-pressed to miss the recent furore over Twitter abuse after a stream of cases hit the press recently. Many people in the public eye have received online abuse through Twitter.
This brings important warnings for employers about the misuse of social media by their employees, especially if they have "Trolls" (anonymous online abusers and mudslingers) in their workplace.
Apart from the obvious concern for the welfare of employees subjected to such abuse and the impact this may have on their work, employers need to be alert to the fact that they could be liable if one employee "trolls" a colleague (especially if done in working hours or using company IT systems). Even where the person abused is not an employee, the employer may still be liable if there is a sufficient connection with the employment. There are also reputational issues to consider if the Troll's identity is revealed as one of your employees.
The legal position is that an employer will be liable for the acts of its employees done in the course of the employment. This exposes the employer to the risk of being taken to court or a tribunal, for example if the online comments amount to harassment under discrimination laws, the Protection from Harassment Act 1997 or if an employee suffers stress as a result of the employer failing to take reasonable care for employee safety. Successful claims will result in the employer having to pay substantial damages to the victim.
However, whether something is done "in the course of the employment" is construed widely. If an employee uses social media while at work to abuse another employee, the employer could well be liable for the employee's actions (whether or not the employee uses the employer's IT systems), even though at first glance they would not appear to be acting in the course of their employment.
If the employee carries out the abuse in their own time, the employer is less likely to be liable, although the risk may increase if the employee uses the employer's systems.
If an employee trolls someone outside the firm while at work, the risks are less but the employer could be still be liable if there is sufficient connection with the employment. For example, if an employee harasses a customer of the business, this could amount to harassment under the Protection from Harassment Act for which the employer could be liable (if the employee were considered to be acting in the course of employment).
Most employees use social media in a sensible way, some do not and, whether accidentally or deliberately, go too far. Social media can create a Jekyll and Hyde situation with people unleashing a nasty alter ego that is protected by a veil of anonymity.
Employers need to think carefully about how best to approach the subject and protect themselves against the risk of claims. Employers have a defence to discrimination harassment claims if they can show that they took reasonable steps to prevent the abuse occurring. Likewise, strict rules on the use of social media will help to reduce the risk of claims and damage to reputation.
Employers should have a social media policy in place which sets out acceptable use and makes it clear that abuse of other employees will not be tolerated under any circumstances (either while at work or outside of work) and any such incidents will be treated as a disciplinary matter. The policy should also make it clear that social media messages may reflect badly on an employer and that negative comments about the company must not be made. It could also require employees to state in their postings that their views are personal and do not necessarily reflect the views of the company. Training should be given on the policy so that employees and managers understand the risks associated with the use of social media.
Most disciplinary policies will already state that bullying and harassment and conduct bringing the company into disrepute are gross misconduct offences.
The fact that the abuse is carried out online makes no difference. Provided that there is a proper investigation and disciplinary process, it will generally be fair to dismiss an employee for online bullying and harassment at work.
Dismissing an employee for trolling outside work (and where there is no connection with work) is more difficult. Employers will need to demonstrate that the Troll's activities have brought it into disrepute or that their activities affect their ability to do their job, for example because their colleagues are not prepared to work with them.
Tina Wisener (pictured) is partner at UK employment law firm Doyle Clayton