A NUMBER OF stories have been reported in the media recently involving cyberbullying. Tragic examples include the suicides of Phoebe Prince and the Gallagher sisters in Donegal. More recently, 28 students in Limerick were suspended for “liking” a comment made by a fellow student concerning their teacher on Facebook. If employers fail to evolve with developments in technology and neglect to take preventative and remedial action, they could be faced with claims brought by both victims and perpetrators of cyberbullying in the workplace.

Damages

Cyberbullying is a developing area of law in Ireland. In fact, most employees are surprised to learn that there is no single piece of legislation that makes bullying, let alone cyberbullying, unlawful. Consequently, we are required to look to recognised common law principles and various pieces of legislation to establish whether a victim of cyberbullying has a cause of action against his or her employer. Causes of action may include:

• A claim in the civil courts for damages arising from a psychological/psychiatric illness suffered as a result of cyberbullying
• Where cyberbullying involves defamatory statements being made about an employee, the employer may be held vicariously liable for the defamation if there is a sufficiently close connection between the employment and the wrongdoing
• A claim to the High Court alleging that the employer breached its statutory duties under the Health, Safety and Welfare at Work Act 2005 by failing to provide a safe place of work
• A claim in the Equality Tribunal under the Employment Equality Acts 1998 – 2011 if the cyberbullying amounts to harassment or discrimination on one of the nine discriminatory grounds
• Where the cyberbullying has become so intolerable that a victim of cyberbullying feels they cannot reasonably be expected to continue working for the employer, they may resign and claim constructive dismissal in the Employment Appeals Tribunal (the “Tribunal”) under the Unfair Dismissals Act 1977-2011

Responsible for your employees

Many employers find it hard to swallow that they could be liable for statements made by their employees outside of working time and on personal computers/devices. However, if the conduct is sufficiently connected with the employment relationship, it is likely that, based on current common law principles, the courts in Ireland will have no difficulty in finding the employer liable. In order to defend these claims, it is imperative that an employer can show that it has procedures in place to prevent, detect and address cyberbullying. Turning a blind eye is no longer an option.

In turn, employers often query whether they can discipline an employee for posting comments on social media outside of working time and on personal computers/devices. An employer will be justified in disciplining an employee, as long as fair procedures are applied and the sanction imposed is proportionate, if the conduct is sufficiently connected with the employment relationship and the employer has a policy in place which prohibits the conduct complained about.

Case studies

In the case of Emma Kiernan v A Wear Limited (2007), the employee was dismissed for misconduct for posting derogatory comments about her manager on Bebo. While the dismissal was ultimately found to be unfair on the grounds that the sanction of dismissal was disproportionate, the Employment Appeals Tribunal (EAT) had no difficulty with the idea that the comments deserved disciplinary action.

However, employers do need to exercise caution. In Smith v Trafford Housing Trust (2012), the High Court in the UK found that an employee was entitled to express his views about gay marriage on Facebook and his employer had acted unlawfully when it demoted him for doing so. The Court rejected the Trust’s argument that the posts breached the Trust’s Equal Opportunities Policy, which required employees to treat their work colleagues with dignity and respect, as the posts were judgmental and liable to upset colleagues.

The Trust argued that, because 45 of the plaintiff’s Facebook friends were fellow employees, this created a work related context sufficient to attract the provisions in the Policy. The Court held that the plaintiff’s Facebook did not have the necessary work related context to attract the relevant provision in the policy as it was clear he used Facebook for social rather than work-related purposes. This case can be distinguished from the former case as, in the former case, the comments were directed at an identifiable employee as opposed to a general group in society.

New legislation

It is expected that, with the exponential growth of social media, a significant body of law will develop over the next few years. However, it is not expected that legislation will be introduced any time soon. Some efforts are, however, being made by the Government. The Oireachtas Joint Committee on Transport and Communications is holding public hearings which will remain open until 29 March 2013. It will be interesting to see what, if any, proposals are formulated by the Committee. Until legislation and/or guidelines are published, employers are advised to:

• Prohibit any form of bullying, including cyberbullying, as a part of a social media
• Make it clear what types of behaviour are prohibited and what the consequences for breach of the policy will be
• Communicate the policy to employees
• Take remedial action where necessary

Julie O’Neill is an Associate with McDowell Purcell Solicitors

Bullied: Your stories of bullying in the workplace>

Committee to hear about bullying on social media>