Henry Attorneys

Employers- Don’t let a court order you to pay for cyber-bullying and harassment! Social media has many benefits to offer in any workplace. On the other side of the coin though, social media also exposes an employer to numerous risks. These risks need to be managed through a comprehensive social media strategy or an employer may find itself having to pay for the “social sins“of its employees. Risky Business Cyber-bullying and cyber-harassment (which includes sexual harassment) are recognised forms of discrimination in our law. These acts if committed by employees can spell risky business for the employer.  Examples of cyber- bullying include:

• Malicious or threatening emails or SMS communications to an individual’s phone or email
• Electronic communications that feature offensive content like explicit images or jokes/comments about race, religion or sexual preference
• Electronic communications aimed at correcting or providing feedback to an individual that are copied to a group with the effect of publicly shaming or demeaning the individual
• Malicious or threatening comments to or about an individual posted on social networking sites
• Sharing embarrassing, offensive or manipulated images or videos of an individual
• Screen savers or desktop backgrounds featuring offensive content

Sadly acts of this nature are very common. In both electronic media and print media it is commonplace to find a huge number of articles on the issue. For employers these cases should raise a red flag. Why? Acts of bullying and harassment have a detrimental affect on employee well-being and hence operations. In extreme cases acts of bullying have lead to victims committing suicide. See the post at http://trudalane.net/resources/node/377 for the details of a journalist who was allegedly prompted to suicide through cyber-bullying.  More typically these acts lead to decreased morale, depression, increased sick leave and absenteeism, decreased productivity and conflict. Furthermore, an employer may be sued for any bullying or harassment perpetrated by its employees, even if the offensive act was perpetrated outside of the workplace! In legal circles this onerous responsibility is known as vicarious liability (it has nothing to do with a vicarage by the way)! Victims of these acts often choose to enjoin the employer with the accused employee in any legal action since the employer usually has deeper pockets. What is Vicarious Liability? In essence vicarious liability means that an employer can be held to be responsible for the acts or omissions of their employees even though employees’ actions may, at first glance, have nothing to do with the employer. At common law, to establish that the employer is vicariously liable, the victim would have to establish that the act committed by an employee was sufficiently connected to the course and scope of the accused employee’s employment. Naturally employers would always try to escape this liability by arguing that the accused employee was on a frolic of his own at the time of committing the wrongful act and that the act had nothing to do with the employer or the employment relationship The law on vicarious liability has developed in recent times and not to the advantage of employers either. Our constitution, The Labour Relations Act, The Employment Equity Act and changes in public policy towards acts of harassment have forced this change. It is more difficult for employers to escape liability by merely claiming they had nothing to do with the act being complained of, particularly where sexual harassment and other forms of discrimination are involved. In 2004 the doctrine of vicarious liability came under the spotlight in the case of Grobler V Naspers Bpk and another (2004) 13 HC 1.16.2. In this case Naspers was held to be vicariously liable for the acts of a trainee manger that repeatedly harassed a secretary. The secretary complained about the issue to various managers to no avail. She eventually suffered post traumatic stress disorder. The court held, inter alia, that an employer has a duty to provide its employees with a safe working environment. This duty extends beyond physical safety. Since the mangers to which the employee complained failed to take action to address the situation, the employer was held to be vicariously liable for the managers’ omissions. What has this to do with Social Networking? Well the principle remains the same. Should an employee use a social networking site to bully or harass another employee in the workplace the possibility exists that the employer could be held vicariously liable for these acts, even if the offending material was posted outside of the workplace and outside of working time. What can an employer do to bullet-proof itself from vicarious liability?

•  Firstly the employer should have a policy dealing with harassment in the workplace. In terms of the Employment Equity Act, harassment is a form of discrimination and the issue of cyber-harassment may be dealt with as part of the employers Equity Policy or separately;
• Secondly, the employer must take steps to investigate and act upon complaints of harassment from employees. Interestingly S60 of the Employment Equity Act provides that the employer will be held liable if it is made aware of an act of unfair discrimination and fails to act upon it. This is known as strict liability.
• Thirdly the employer should have a social media policy which clearly sets out the employers expectations in respect of the use of social media inside and outside of the workplace;
• Fourthly the employer should have a disciplinary code that makes it clear to employees that their actions outside the workplace, which have a negative impact on the workplace, are subject to disciplinary action. It is trite law that employees may be disciplined for their behaviour outside the workplace if it negatively  impacts the workplace;
• Fifthly, employers should provide social media training to employees, which enlighten employees to the positive and negative aspects of these tools and the potential consequences for deviations from what the company has stated as being acceptable.

With the above protections in place it is highly unlikely that an employer would be held vicariously liable, as the employer would have taken all possible reasonable steps to prevent any potential acts of harassment and discrimination in the workplace. If you know of or have been the victim of a cyber-bully or harasser, or if you have any thoughts or ideas on the subject, feel free to share.  I look forward to hearing from you. Vanessa

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