Recent case law has highlighted how the lack of a social media policy can have disastrous consequences for employers.
In the High Court case of Bank of Ireland v. O’Reilly (2015) an employee was dismissed for forwarding allegedly pornographic emails to other employees. The employee was reinstated to his employment six years after having been dismissed and was therefore entitled to six years remuneration in addition to returning to his job. The lack of any policy to allow the employer to discipline the employee for inappropriate internet use was one of the core factors to this decision.
In the Labour Court case of William McCamley v. Dublin Bud (2016) an employee took a claim against its employer, Dublin Bus, as he was harassed and victimized on grounds of race and religion by a co-worker via Facebook. The harmful messages were directed at the employee in his capacity as an employee of Dublin Bus. An employer can be held directly liable for the conduct of its employees on social media unless it can prove that preventative measures were taken by the employer before the occurrence of the offending conduct. The Labour Court held that taking action after the event and in response to the complaint does not satisfy the criteria of preventative measures. Dublin Bus had a policy against harassment and sexual harassment at work. However, it did not contain a provision specially directed at preventing harassment through the use of social media. Fortunately for Dublin Bus, there was a company rule in place which prohibited conduct “…prejudicial to the reputation and welfare of fellow employees.” The Labour Court stated that although the company rule may not be an adequate substitute for a well-defined policy against the use of social media as an instrument of harassment, it was nonetheless a comprehensive provision directed at protecting employees. On that basis the Labour Court found that the employer could avail of the above preventative measures defence.
This decision placed a spotlight on the potential liability employers are open to and the necessity to have a strong and effective social media policy in place. The permitted and prohibited uses of social media in the workplace should be clear to employees, both during and outside of work hours. In addition, it should be clear to employee that inappropriate use of social media may result in disciplinary action up to and including dismissal.
A social media policy should:
Anne O’Connell
Employment Law Solicitors
Article dated: 12th March 2017
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