Can abusive comments posted on Facebook outside of work by colleagues constitute harassement ?

The scope of Dignity at Work Policies is that behaviours complained about must have occurred in the course of employment. This scope does not always cover the personal use of social media outside of work and it is an interesting issue that was dealt with by the Labour Court recently in Dublin Bus v McCamley (EDA 164). This was an appeal by an employee of an Equality Tribunal Decision ( DEC E2015 – 100) which had found that his employer was not liable for harassment that had occurred.

The Complainant had originally referred a complaint under the Employer’s Dignity at Work Policy in respect of derogatory comments that had been posted about him by a colleague on Facebook. The Employer decided that as the comments had been made outside of the workplace, the complaint did not fall within the scope of their Dignity at Work Policy. However, they did decide that the conduct had occurred and that it was a breach of the standard of conduct required in their Staff Handbook under Rule 18 and that the behaviour had been “prejudicial to the reputation and welfare of an employee”. A disciplinary sanction was imposed on the perpetrator.

In terms of the subsequent appeal of the Equality Officer’s decision that came before the Labour Court, there were two key issues under consideration in order to determine if the Company was liable under the Employment Equality Acts 1) Did the postings on Facebook constitute activity and harassment that arose in the course of the employee’s employment and 2) If the conduct had arisen in the course of employment, did the Employer demonstrate that they had taken appropriate measures to prevent the conduct happening. The Employer contended that as the comments were posted outside of the workplace, the Complainant had not been harassed in the course of his employment and the conduct had no connection whatsoever to his employment.

The Labour Court found that it did not matter that the harasser was at home or not working when he posted the offensive comments and that in effect the offending comments had been posted as a result of the harasser being a colleague of the Complainant and therefore in the capacity of the Complainant being an employee of the Respondent Company. The Labour Court was satisfied that there was a relevant connection between the harassment and the Complainant’s employment and determined that the posting of the offensive comments constituted harassment as per Section 14 A(7) of the Equality Acts.

However the Labour Court further determined that the Respondent was able to avail of the defence available within the legislation, that it had taken appropriate preventative measures to stop the conduct occurring. In this regard whilst it did not have a specific clause in its Dignity at Work Policy with regard to harassment through the use of social media, it did have a rule in its staff handbook which protected employees from harmful treatment by colleagues.

This case is interesting in how it has clarified how far reaching the scope is for work place related harassment to potentially occur and equally for highlighting again the necessity of having clear policies in place with regard to standards of conduct required in the workplace. Employers should ensure that their Dignity at Work Policies are updated to include work related personal social media use as a potential form of harassment and also should ensure that there is appropriate cross referencing with other policies including IT use and the Disciplinary Policy. In addition all complaints raised should be investigated as quickly as possible and appropriate action taken.