Employers reminded that ‘clear communication’ is the key to managing online harassment

Out-Law News | 01 Dec 2020 | 11:48 am |

Rebecca Stephen tells HRNews there is a difficult line to be drawn between freedom of expression and online harassment  

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  • Transcript

    What obligations does an employee have to their employer when expressing views on social media, and to what extent can, and should, employers respond to what their employees say on these platforms?  That is one of the questions to be considered by a parliamentary committee in the next few weeks. The Joint Committee on Human Rights has launched a Freedom of Expression Inquiry to look at whether greater clarity is required to ensure the law in this field is fair - and it's inviting interested parties to contribute written evidence by 6th December. An area of particular concern for employers is the issue of online harassment and judging where to draw the line between, on the one hand, an individual's freedom of expression and, on the other, workplace harassment. The former derives from EU law - Article 10 of the European Convention on Human Rights which says 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 problem is that whilst social media continues to be an outlet for individuals to express their views it often spills into the workplace. In a recent article for Outlaw Helen Corden and Rebecca Stephen have written about the management of this problem within the university sector, where we are seeing this problem a lot at the moment, but, of course, it is not confined to that sector. Back in January the CIPD carried out research into managing conflict in the modern workplace and concluded that line managers are ill-equipped to deal with it. So, to understand how HR can help with this I phoned Rebecca Stephen:

    Rebecca Stephen: “The recent emphasis and prevalence of remote working means that it's more important than ever, really, for employers to be able to show that they are aware of this risk of online harassment and that they're taking steps to address it. I think that can be a greater risk of comments being misinterpreted, or offence taken unknowingly, when we are operating much more in this virtual world, particularly where individuals themselves may be feeling more isolated or less able to cope given the current and circumstances. Social media, of course, continues to be an outlet for individuals to express their views but on occasions this can spill over into the workplace. There can be a real tension here and it can be quite difficult to find that line between an individual's right to freedom of expression of their opinions and their beliefs and when that opinion may actually be considered offensive and/or amount to harassment of an individual. So where, for example, two colleagues are expressing opposing views over social media, or one individual is expressing a view that the other considers amounts to harassment because of their beliefs, and the case law really has suggested that context is everything. So whilst, of course, individuals have the right to have their own opinions, it's always subject to restrictions that, you know, those opinions are in accordance with the law and that they're also necessary in a democratic society. I think a lot really depends on the way in which such comments are made and whether they're done in a respectful and a measured way which recognises that others have differing opinions, or if it's done in such a way that it could be considered offensive and, and therefore amount to harassment in accordance with the law.”

    Joe Glavina: “So given that tension between opinion privately expressed and unlawful harassment, what’s the advice to HR on handling that?” 

    Rebecca Stephen: “I think it's all about sort of communication about transparency, so about having, you know, having a clear harassment policy which makes explicit reference to online harassment and ensuring that individuals are particularly aware and expressing their beliefs or things that they do outside of the workplace can particularly impact, or could impact, on their on their role and can spill over into the workplace. So I think it's just ensuring that people are aware that, you know, it's fine to have different opinions, and it's okay to express them, but it must be done in a respectful and appropriate way and that, you know, just because something is done by somebody outside of work, it doesn't necessarily mean that it can't be brought within the workplace.”

    Joe Glavina: “You mention vicarious liability in your Outlaw article saying that whilst the employer may be able to avoid liability if the conduct is not done in the course of employment but how, in that situation, the employer could, and should, still consider disciplinary action. How does that play out?”

    Rebecca Stephen: “Yes, so an employer will be vicariously liable where the conduct is in the course of employment, and that can be a relatively broad context and it has been on occasion widely interpreted. So an employer could be liable, for example, for comments made by an employee in something like a group WhatsApp chat, particularly if it's partially for work purposes, or even in some cases comments on social media but even if the employer isn't vicariously liable, so even if the conduct is done wholly outside of the employment relationship, there's still a separate decision, I think, then for an employer to take as to whether it's appropriate to take some form of action, because even if they may not be liable in a legal context for that person's actions outside of work it can, of course, still impact on their employment relationship, both with the employer in terms of its reputation, or with that individual's relationship with other colleagues. So it may be the case that it is still appropriate that the employer has to take some form of disciplinary action and, of course, these are not easy questions and, again, that's why it's so important to have these clear policies. One of the key points is that individuals should be aware that that actions outside of work, whilst of course they have a right to a private life, they can impact on their employment relationship and potentially have consequences.”

    Going back to that recently launched parliamentary enquiry, you can get involved if you want to put your views forward. The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals. The deadline for submissions is 3 January.