Facebook’s Workplace, the instant messaging service Slack, and Google Plus to name but a few all define themselves as being collaborative or shared workplaces and encourage openness, which unfortunately has the potential to be exploited. Between them they include features like profiles, news feeds, events, groups, messaging (including voice and video calling) and live videos.
These platforms sometimes do not allow an employee to block a colleague, or at least make it difficult to do so. Employers often encourage (or even require) employees to post information about themselves and their activities on a regular basis. This can obviously have many benefits, as it allows staff within larger organisations to be connected across the world, to form cross-border teams and to share expertise. Most multinationals now regard this as an essential business advantage, so promote this type of cooperation strongly.
Unfortunately the complaints made by some respondents to the Financial Times have an all-too-familiar ring to those of us who work in employment law. Employees often spend a lot of time in each other’s company, or working closely together even if not in the same location. Occasionally one will feel an attraction that the other does not share.
Sometimes people put forward crude propositions (often under the guise of humour), sometimes romantic proposals suggesting they have long harboured intense feelings for the object of their affection. Some will send offensive images, jokes or links and others will follow another employee too closely, keeping track of that person’s whereabouts. Those inclined to the latter approach can now use calendars that have been shared at the insistence of the employer, or that cannot be blocked. Alternatively they can rely on the information available on social media.
Comments on another’s appearance sent through Instagram or LinkedIn can form part of such harassment and a number of examples have attracted press attention and resulted in significant damage to careers. Platforms that allow people to share screens remotely, video-conferencing facilities, or any platform that allows employees to bully others (including anonymously) can all be misused.
Employers in the UK have a responsibility to protect their employees. Not doing so could lead to claims such as constructive dismissal, harassment and personal injury claims. Staff can even bring claims under the Protection from Harassment Act. Employers should not therefore rely only on the acceptable use policy of their preferred social media platform (assuming they have such a policy). They should ensure that the wording in their policies is extended, if necessary, to make it very clear that the following can all constitute misconduct:
- Harassing a colleague or work contact through social media (including by making inappropriate advances or being too persistent or 'creepy' in one’s attentions)
- Using company systems to harass or act inappropriately towards anyone who is unconnected to the employee’s role, including through social media platforms (whether professional or personal)
- Running the risk of bringing the organisation into disrepute by harassing or stalking a third party, even if that party is completely unconnected to the employee’s work and even if the conduct in question happens through the employee’s own devices.
Making employees aware of these risks should significantly reduce the danger to the employer. In practice this will usually mean not only setting them out in policies, but also providing the necessary training to ensure that the message has not been lost. It is all the more important for organisations to be leading on such issues in the current post-Weinstein climate. Victims of harassment are now much less likely to suffer in silence.
Anthony Sakrouge is the head of employment at Russell-Cooke
