In accordance with section 15 of the Employment Equality Acts 1998 to 2021 (EEA), an employer can be vicariously liable for the actions of their employees, especially in the context of discriminatory behavior. This principal is not unlimited, however, and the employer can avail of the “reasonable steps” defence as provided for in the EEA.
In the Labour Court case of McCamley v Dublin Bus (2016) an employee took a claim against his employer on the basis that he had been harassed on Facebook by a coworker on the grounds of race and religion. The harmful messages were directed at him in his capacity as a Dublin Bus driver but they were sent outside of the employee’s working hours.
The Labour Court held that harassment need not take place in the physical workplace or within the scope of working duties for an employer to be responsible under section 15 of the EEA. Accordingly, Dublin Bus’ argument that the offending conduct took place outside of work was rejected. However, Dublin Bus was able to avail of the defence in Section 14 A (2) of the EEA on the basis that it had put it place a comprehensive policy with regard to harassment at work and had invoked its disciplinary process promptly when notified of the offending conduct.
This decision brought into sharp focus the necessity for an employer to have a clear and robust social media policy in place. A good social media policy should make it clear to employees what the permitted and prohibited uses of social media both in and out of the workplace are. Employees should be made aware that inappropriate use of social media both in and out of working hours may result in disciplinary action and dismissal. In addition to this, employers should ensure that employees have ready access to complaints procedures so as to trigger investigation and disciplinary action or other corrective action where there has been an instance of inappropriate behavior or harassment.
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The content of this article is provided for information purposes only and does not constitute legal or other advice.
