Cyber-Bullying: What measures should employers have in place to avoid discrimination

Cyber-Bullying: What measures should employers have in place to avoid discrimination? Are employers liable for discriminative comments / bullying content that workers send to fellow colleagues by email?

Under discrimination legislation there is a presumption that employers are liable for discriminatory acts carried out by their employees whether done with or without their knowledge.  This is called vicarious liability and means that employers could be responsible for compensation for discrimination at Tribunal in respect of a matter over which they have no specific control or knowledge. 

Because of this, it is necessary for employers to implement equality policies and ensure that they are rigorously applied. Ongoing information, support and training must also be given in order that employees are made aware of the correct approach for dealing with fellow employees and workers in a non-discriminatory way, and that all recruitment and promotion etc. is based on merit. 

Furthermore, employees must regularly be made aware of examples of discrimination, harassment or victimisation that can occur, so they can be warned not to undertake such behaviour, and the consequences of so doing.  Once all these factors are put into effect, if a Tribunal determines that a discriminatory act has been carried out by an employee, then there is a defence for the employer to say that they are not vicariously liable because of the efforts they have undertaken to prevent such matters occurring in the first instance.

In certain circumstances, employers may also be liable if they fail to take reasonably practicable steps to protect employees from persistent harassment by third parties, such as customers or clients, where the employer knows that such harassment has occurred on previous occasions.

Bullying via email or on social networking sites can create a hostile atmosphere for an employee on the basis of which they could credibly claim they have been subjected to harassment. If there has been no communication from employers to their employees that such behaviour is not acceptable, it is likely that the vicarious liability provisions will apply and the employer could be held responsible.

An equal opportunities policy or anti-harassment policy will outline your attitude towards this kind of behaviour. It is not acceptable in the workplace and your employees should be made aware of this. The policy should state acts of discrimination or harassment of any kind are not tolerated and disciplinary proceedings will be taken against anyone who acts in this way.

An email and internet use policy will help your employees understand what is expected of them in relation to the content of their communication. The policy should state what you deem to be prohibited content. You could also set reasonable limitations on use of social networking. A total ban on employees using these sites in their own time would likely be unreasonable so this policy can make it clear that work related matters should not be discussed on these sites and any breaches of this rule will be treated as though it had been done in the work arena, being potentially subject to disciplinary action.