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Are employers liable for bullying outside of work or on social media?

Employment Law & HR

Bullying via social media is a very modern-day problem that has grown considerably in the last few years. Cyber bullying by definition is any form of bullying, harassment or victimisation that occurs online.

It can involve the posting of inappropriate photographs, threatening or offensive comments, or revealing sensitive personal information about someone. As with any other form of bullying, it can be hugely damaging to individuals and organisations.


What counts as bullying or harassment?

Bullying and harassment is behaviour that makes someone feel intimidated or offended. Examples include:


 – Spreading malicious rumours

 – Unfair treatment

 – Picking on or regularly undermining someone

 – Denying someone’s training or promotion opportunities


Although bullying itself is not against the law, harassment is under the Equality Act 2010. In many cases the two overlap. Harassment is unwanted behaviour based on what is known as a ‘protected characteristic’. These are:


 – Age

 – Sex

 – Disability

 – Gender reassignment

 – Marriage and civil partnership

 – Pregnancy and maternity

 – Race

 – Religion or belief

 – Sexual orientation


Is bullying outside the workplace the employer’s responsibility?

There is the possibility of an employer being responsible for cases of bullying and harassment taking place between employees outside of work, in a work-related environment, or via social media. This is known as vicarious liability.


The question as to whether an employer is vicariously liable for bullying outside of the workplace is whether their employee was acting in a personal capacity or in the course of their employment. Conduct which is damaging to the employer or a customer, or has an impact on employees’ ability to do their job would be considered the employer’s responsibility.


For example, if one employee sent threatening messages over Twitter or Facebook to another, the person of the receiving end may feel intimidated about coming to work. Although the threats haven’t taken place in the workplace itself, it still has an impact on an employee’s ability to carry out their role and so makes it the employer’s responsibility.


How can employers prevent bullying outside work?

To defend against vicarious liability, employers need to take all reasonable steps to prevent bullying and harassment occurring between employees either in or outside work, or on social media.


This means including relevant guidelines as part of company policy on bullying and harassment, along with the disciplinary action that will be taken if the guidelines are breached.


The social media guidelines should also be cross-referenced and made part of company policy on discrimination, equal opportunities and data protection. The guidelines should be communicated to employees and included in their employee handbook and contract.


Another key preventative method is by providing anti-discrimination training that makes the company’s views on conduct outside of work and on social media clear. This means that ignorance will be no excuse should an incident happen.


Employers will need to monitor social media and investigate any possible occurrences. They will also have to then enforce the rules through their disciplinary procedure, so if a case came before a Tribunal the employer is seen to have done all they can to have avoided it.


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