Out-Law Analysis | 20 Nov 2020 | 9:31 am | 5 min. read
The recent emphasis on remote working and distance learning means it is more important than ever for universities to be able to show that they have taken all reasonable steps to address the risk of online harassment to both staff and students.
This article is part of a series looking at online risk in the higher education sector, which includes a look at what disclosures obtained under freedom of information laws tell us about how providers are approaching online safeguarding.
Harassment is unwanted conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. Under the Equality Act 2010, unlawful harassment of an employee occurs where it relates to a “protected characteristic” such as sex, age, sexual orientation, religion, disability or race. An employer will be liable for acts of harassment carried out by a member of staff in the course of their employment where they cannot show they took all reasonable steps to prevent it.
There is also an implied term of mutual trust and confidence between employers and employees, assuming they will treat each other with respect and civility and not in a wholly unreasonable manner. Workplace harassment undoubtedly has the potential to breach this implied term and an employee could rely on this as a reason to resign and potentially bring a claim for constructive unfair dismissal.
It is therefore important for employers to take steps to prevent harassment from occurring in the workplace, not only to avoid legal liability but also to maintain a happy and productive working environment.
Employers should have a harassment policy which makes explicit reference to online harassment and covers matters such as what it is, what behaviour is expected of employees and the possible consequences of breaching it.
When faced with an allegation of online harassment, managers should refer to their organisation's policy to ascertain the appropriate way to respond to any complaints received and liaise with the human resources team for advice and guidance
Employers should also deal with online harassment in their IT policy and also consider a separate social media policy. The relevant policies need to make it clear that an employee's actions outside of work can impact on their employment.
It is important to carry out regular training on any policies, and tools such as pop-up reminders to employees that they should use virtual platforms appropriately can help employees to be more aware of their behaviour.
When faced with an allegation of online harassment, managers should refer to their organisation's policy to ascertain the appropriate way to respond to any complaints received and liaise with the human resources team for advice and guidance.
One option is to take informal action. This could be done through a quiet word by a manager with the perpetrator and an explanation of the impact of their behaviour. Alternatively, the employee who has made the complaint may wish to go through a formal complaints process, or the seriousness of the complaint may warrant it, in which case an investigation will need to be carried out potentially resulting in disciplinary action. Additional support may be needed for the complainant, for example through an employee assistance programme.
Employers should act swiftly if they become aware of harassment rather than wait for complaints to be made. It is important not to be a bystander but rather to set the rules on, and remind employees of, the appropriate standard of behaviour in the workplace to positively influence workplace culture.
Online harassment can occur in a number of ways. In 2012 Abraham Otemewo brought a claim for, among other things, harassment after two of his colleagues used his phone without his knowledge or permission. They updated his Facebook status to: “Finally came out of the closet. I am gay and proud”.
Otomewo felt embarrassed and distressed by the status. The Employment Tribunal decided the action constituted harassment on grounds of sexual orientation, saying it was irrelevant that Otomewo was not gay and it was reasonable for him to feel the way he did.
The status update was unwanted conduct and was an intrusion into his private life on a public platform causing him offence. The employer was liable for the employees' actions.
In another scenario, a WhatsApp group is set up amongst a group of predominantly male colleagues for work related purposes, though it is subsequently used to send personal messages. Some of the messages contain ‘jokes’ with sexual connotations causing a female member of the group to feel uncomfortable and raise a complaint.
This is likely to amount to harassment related to sex. Even if it is unintentional, the question is whether it has the effect of creating an offensive or hostile environment and whether it was reasonable for the individual to so feel. The messages are sent on a group chat set up principally for work purposes thereby potentially creating a sufficient nexus to work for the employer to be vicariously liable.
It can be difficult to find the line between what amounts to someone merely exercising their right to freedom of expression on a particular topic, and when that tips into harassment of another.
Social media continues to be an outlet for individuals to express their views and there is no easy way to find the balance between two potentially conflicting opinions and rights, conflict which can often then spill into the workplace
The right to freedom of expression and information derives from Article 10 of the European Convention on Human Rights. Individuals have the right to have their own opinions, subject to restrictions that they are “in accordance with law” and “necessary in a democratic society”.
The High Court has looked at this issue of balancing rights in an employment context in recent years. A manager expressed his beliefs on gay marriage on his private Facebook page outside of work time, and did so in a respectful way. There was an exchange of comments on the post between the manager and his work colleagues, some of which disagreed with his views.
The High Court's view was that the manager had not failed to treat his colleagues with dignity and respect and it noted that, whilst the expression of views may cause upset or offence, this is a necessary price to be paid for freedom of speech.
In a more recent case, an employee posted comments on his Facebook page about the promiscuity of his colleague and was subsequently dismissed for harassment. Whilst the employee sought to rely on Article 10, the Tribunal maintained that the right to freedom of expression had to be exercised responsibly and did not give him the right to make comments which infringed his colleague's right not to be harassed.
Social media continues to be an outlet for individuals to express their views and there is no easy way to find the balance between two potentially conflicting opinions and rights, conflict which can often then spill into the workplace. However, the way in which an opinion is given, and particularly whether it is done with respect and in a measured way, will be of real importance.
An employer will be liable for acts of harassment carried out by employees in the course of employment; this is known as vicarious liability. It is a broad concept which has been widely interpreted. However, there is a statutory defence for employers if they can show that they took all reasonable steps to prevent the act of harassment.
In the Otomewo case the employer was found vicariously liable for the conduct of the two employees as it was carried out in the course of employment, during work time and they were not able to establish that it had taken reasonable steps to prevent such behaviour occurring.
There is a difference between vicarious liability and what the employer can potentially discipline for. For example, if an individual writes something offensive in a private message to a colleague in their own time, the offended colleague may bring that issue into the workplace by raising it with their manager.
Whilst the employer may not be vicariously liable, as the conduct was not done in the course of employment, it could, and arguably should, still consider disciplinary action against the employee.
Employers and employees need to be conscious that matters between colleagues outside the workplace may impact within the workplace, in which case the employer can and in some circumstances should take action.
13 Nov 2020
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