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British Airways case highlights need for restrictions on email and internet usage at work to be spelled out

British Airways is in the spotlight for its decision to suspend a number of employees pending investigation into their alleged activity on Facebook.

Before taking this course of action British Airways will have had to undertake a complex balancing act involving its legal duty to protect employees from bullying and harassment against the right of employees to privacy.

Complaints of bullying and harassment occur in every workplace. Bullying can take many forms, from a simple misunderstanding or a breakdown in communication to a hate campaign waged by one individual against another. 

Our dependency on email and text as forms of communication and the increasing prevalence of social networking sites means that employers must now also be alive to the fact that cyber-bullying could be taking place within their organisation.

Irrespective of its form, all employers need to take allegations of bullying and/ or harassment very seriously. Complaints of this nature can be costly.

If alleged harassment is on the basis of one of the protected discrimination grounds (sex, race, disability, sexual orientation, religion or belief or age) the victim can file a discrimination claim in an employment tribunal. Compensation for a successful discrimination claim is uncapped.

Employees who don't fall into one of the protected categories may still be able to take recourse against their employer under The Protection from Harassment Act 1997. This legislation gives employees the ability to make claims against their employer where a colleague has, in the course of employment, subjected them to oppressive and unacceptable behaviour. It is therefore likely only to apply in extreme cases.

Employers must take steps to combat workplace bullying and harassment - particularly that of the cyber variety which may be more difficult to spot. At the same time, however, it is important that employers don't forget about the competing privacy issues.

Article 8 of the European Convention of Human Rights provides for the right to respect for private and family life.  Employees may argue that their activities on social networking sites are private and should not be viewed by their employer. 

Some would, however, respond that those who choose to be ‘friends' with work colleagues on such sites and post details of their escapades at the weekend or their latest holiday snaps cannot then claim the benefit of the right to privacy if an allegation is made against a comment/ post they have made.

When it comes to monitoring internet usage in the workplace, employers should have a clear policy detailing any monitoring that email and internet usage may be subject to. Employers must also consider the Data Protection Act 1998 and the Data Protection Code. The Act provides a number of principles regarding the processing of employee data while the Code provides that ‘any adverse impact of monitoring on individuals must be justified by the benefits to the employer and others'.

The British Airways employees are not the first to have experienced repercussions in the workplace as a result of their activities on Facebook and are unlikely to be the last.  It therefore seems that at this time the scales are tipping in favour of employers taking steps to protect not only their employees but ultimately their brand strength and reputation in the market.     

Fiona Morrison is a solicitor at Dundas & Wilson