As employees are increasingly required to engage with social media platforms during the course of their employment, whether by blogging, Tweeting or maintaining a personal social media presence, they run the risk of being targeted by internet trolls. What obligations does an employer have in such a situation?
At present, employers are potentially liable for third party harassment under the Equality Act 2010 ("EqA") where a third party has harassed an employee during the course of their employment on the grounds of a protected characteristic, where the employer was aware of a course of harassment and where the employer failed to take reasonable steps to prevent the employee's harassment. This suggests that employers must consider what reasonable measures they could put in place to protect the employee from trolling or run the risk of a claim.
However, the provisions relating to third party harassment are being scrapped from 1 October 2013 as part of the Government's ongoing war on red tape (and despite consultation which suggested that 71% of those consulted favoured keeping the provisions).
There will still be a duty on employers under the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees and a broader implied duty to provide a suitable working environment for employees. Previous case law suggests that an employer must take reasonable steps to protect employees from unacceptable treatment and behaviour and unauthorised interference with work duties to avoid breaching the latter obligation. Failure to protect employees from trolling could also give rise to a constructive dismissal claim.
There is no case law directly on this issue at present. However, where an employee is required to maintain a social media profile as part of their duties, employers would be wise to take practical steps such as:
- Training – training employees who are required to use social media during the course of their employment. Such training could involve informing employees of the importance of reporting trolling to their employer and familiarising employees with methods of blocking and reporting trolls;
- Policies – all such guidance should be reinforced in the employer's policy documentation;
- Assistance – assisting employees to take action in relation to trolling, whether with the social media provider or, in more serious cases, with the police; and
- Being sympathetic – where employees have been subject to vicious or abusive trolling, it may be sensible to consider what emotional support could be provided through, for example, an employee assistance programme.