Ask The Expert: How Should Employers Handle Cyber-Bullying In The Workplace?

An employee has complained that a colleague made derogatory comments about him on Facebook. Given that the employee posted these comments outside working hours — do I, as their employer, have a duty to do anything about this?

"Employers should not disregard an employee's conduct just because it happened outside work."

Many employers have been faced with this situation, or a situation where derogatory comments have been made about the company on Facebook or another social media site, and it is often difficult to know what steps you can take.

With the phenomenal rise of social media — there are currently 34 million individuals in the UK who are regular users of Facebook and 15 million active users on Twitter — incidents of inappropriate and abusive behaviour on social media sites have increased significantly in the last few years. In the light of this, and the increasing publicity surrounding incidents of cyber-bullying, such as the recent Twitter abuse against Stella Creasy MP, companies need to make sure that they are aware of what obligations they have to protect their employees, especially where the cyber-bullying occurs outside the working environment.

Despite the increase in incidents of cyber-bullying, there is only limited guidance from the courts and tribunals. This is because only a relatively small number of cases involving the misuse of social media have been heard by employment tribunals, and there are very few Employment Appeal Tribunal or Court of Appeal decisions on these cases. What is clear from all the cases is that an employer with a clear social media policy will be in a much better position to take action than one without. As such, until there is further guidance, it is advisable to:

have a comprehensive social media policy which makes clear to employees the approach the company will take to the misuse of social media both in and outside the workplace communicate this policy effectively to all employees, and treat social media-related misconduct in the same way as any other form of misconduct. Employers should not disregard an employee's conduct just because it happened outside work. Employers are vicariously liable for acts by their employees which occur in the course of their employment. Tribunals generally take a broad view as to what is in the course of employment, so comments posted on a social media site could meet this test.

In any event, in some situations, failing to act against cyber-bullying doesn't just put...