The rapid expansion of the use of social media has changed society in many ways, and it also impacts the workplace. When thinking of ‘workplace bullying’ (including social media bullying) or discrimination, we often think of situations that occur internally in the workplace, like:
- harassing or ridiculing a worker;
- treating a worker less favourably because of a personal characteristic (for example, their race or sexuality);
- excluding the worker from work meetings/functions whilst other employees are able to participate; and
- other general unreasonable and cruel behaviour towards a worker.
But when discrimination extends to social media, things can become particularly tricky and employers need to be very aware of the industrial risks and consequences that can flow from the inappropriate use of social media by their staff.
"As many employers allow their employees to use social media at work it is important for them to implement a comprehensive policy that contains clear guidelines ..."
Not only can employers be held vicariously liable (that is, the employer being found liable for the conduct of their individual employee/s) for discrimination and harassment that physically occurs in the workplace or at work events, in certain circumstances they may also be held responsible for posts and comments made or circulated on social media by their employees.
As many employers allow their employees to use social media at work it is important for them to implement a comprehensive policy that contains clear guidelines on how to responsibly use social media, including obligations under anti-discrimination laws.
As a minimum the policy should:
- make clear that access to social media is provided on the basis that it will be used reasonably and appropriately, without damaging the employer’s reputation and business;
- make clear that access to social media on a personal device within work hours must be limited (depending on an individual business’ stance) and that any use of social media outside of work hours must not discriminate against or harass co-workers, contractors or the business in general;
- clearly articulate what is acceptable use and unacceptable use of social media in the work context, including that it will not be used to discriminate, harass or bully co-workers, contractors or the employer; and
- state that the policy also applies in relation to access to social media when it is accessed remotely using the employer’s IT systems (not physically in the workplace).
Employers should review their existing policies on discrimination, harassment and bullying to ensure that they sufficiently address the use of social media in the workplace and if not, implement any necessary changes to those policies. Any regular staff training that employers provide in relation to workplace conduct and behaviours should also be updated to include a component on the appropriate use of social media in the work context.
It is clear that bullying and discrimination is not a straightforward area of industrial and employment law and careful consideration needs to be given to the specific facts surrounding each matter.
What is clear, however, is the fact that the increasing prevalence of social media may continue to cause workplace problems if people are not careful and considerate about its use and if businesses fail to implement appropriate and effective social media policies.
If you have been the victim of workplace discrimination or other unreasonable treatment, we recommend that you seek legal advice from a lawyer experienced in bullying, harassment and discrimination legislation. Feel free to get in touch directly with today’s blog writer, Associate in Civil Litigation and Employment Law, Michael Irvine.