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's said on these platforms? Those are two of the questions now being considered by a parliamentary committee. At the end of last year the Joint Committee on Human Rights launched a Freedom of Expression Inquiry looking at whether greater clarity is required to ensure the law on this is fair. One of the areas they have been looking at, and a particular concern for employers, is 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 express their own opinions, provided they are “in accordance with law” and “necessary in a democratic society”. But, there's a problem, potentially, when those views spill into the workplace. So that's the balance.
There have been a number of cases on this in the UK. So to give you a flavour, in one of them, a High Court case, a manager expressed his views 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 posting between the manager and his work colleagues, some of whom disagreed with his views. The High Court sided with the manager – whilst his views caused upset and offence the court ruled he hadn't failed to treat his colleagues with dignity and respect and whilst his views did cause offence that was the price that's paid for freedom of speech. In another case, which went the other way, an employee posted comments on his Facebook page about the promiscuity of a colleague and he was subsequently dismissed for harassment of her. The employee tried to rely on Article 10 but the tribunal rejected that on the basis that the right to freedom of expression had to be exercised responsibly, which was not the case here because the comments did amount to unlawful harassment.
So back to the question. What should employers be doing to combat this given that we know online harassment is a problem that is getting worse? To help with that I phoned Rebecca Stephen who has been advising on this:
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 which is 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: “Can I come onto a couple of other issues - vicarious liability and disciplining staff. So private comments are outside the course of employment so presumably the employer avoids vicarious liability. And, given the comments are private, should employers still be looking at disciplinary action?"
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 parliamentary enquiry, the call for evidence was extended to the end of January but it has closed and we are just waiting for the committee to report back. When they do, we will do the same.