The current covid-19 crisis has led to a significant increase in the number of employees working from home, using electronic devices and communicating virtually with colleagues, clients and competitors.
This increased reliance on such technologies substantially increases the risk for employers and company officers being held vicariously liable for acts committed by their employees while communicating online or via electronic devices. Furthermore, the Government has recently enacted the Harassment and Harmful Communications and Related Offences Act 2020 (“the Act”) which has a particular focus on prohibiting certain electronic communications and specifically provides that employers and company officers can be held criminally liable for acts committed by its employees.
Employers may be ordered to pay significant damages to third parties and can also be criminally prosecuted for their employees’ actions where such actions are found to be in breach of the following:
- Equal Status Acts 2000-2018 – prohibits discrimination on nine grounds including gender, age, race, marital status, religion and disability;
- Data Protection Act 2018 – governs the use of personal data;
- Defamation Act 2009 – prohibits the publication of defamatory statements;
- Intellectual Property Laws – protects Intellectual Property Rights such as copyright and trademarks;
- Harassment and Harmful Communications and Related Offences Act 2020 – prohibits the distribution, publication or sending of threatening or grossly offensive communications.
Just as employers can be liable for physical or verbal acts committed by its employees which are in breach of the above provisions, this liability also applies to acts committed electronically or virtually by employees and includes:
- Publications by an employee on the company social media accounts such as Facebook, Twitter, LinkedIn;
- Publication by an employee on their own personal social media accounts
- Emails sent by an employee from a company email address;
- Communications sent by an employee from work devices such as mobile phones and laptops.
- Messages, videos and links sent via WhatsApp or other messaging apps while in the workplace or for purposes connected to the employment.
To combat this increasing risk to employers the introduction of Social Media and Internet Usage Policies which clearly set out the company’s policies in relation to the use of social media accounts, both connected to the company and personal accounts as well as communication via electronic devices such as laptops and phones provided by the company or used in the workplace can offer significant peace of mind to employers and company officers. A Social Media and Internet Usage policy which is effectively communicated to employees can act as an invaluable defence to employers and company officers who find themselves being pursued by injured parties in a civil claim or by the state for criminal proceedings for acts committed by their employees in the workplace or using company devices or accounts. These policies will also provide increased protection for a company’s reputation, which can be negatively impacted by adverse acts committed by its employees, if it can be shown that the company expressly condemned such acts through the introduction of various policies.
Furthermore, in many cases these policies can be relied upon by employers to justify dismissal of an employee where the employee acts in contravention of these policies, which have been expressly communicated to them and form part of their contract of employment.
Every company is different and all policies can be tailored to the specific requirements and preference of each company in consultation with the employer and employees, where this is preferred. We have extensive experience advising clients from large multi-nationals to indigenous enterprises in relation to workplace policies and can offer assistance to any employer or company officer seeking for advice in relation to any of the above.
For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at firstname.lastname@example.org or Michelle Cross, Trainee Solicitor by email at email@example.com.