Hubble, bubble, trolls mean trouble

THE terms 'troll', 'trolling' and 'trolled' are being increasingly used in the media. More frequently these terms relate to the internet definition '“ one who posts a deliberately provocative message on a social media forum with the intention of causing maximum disruption and negative controversy '“ although the Hobbit trilogy and forthcoming American Dreamworks 3D cartoon have perhaps caused some confusion.

Use of social media by staff, even in their own time, may be very much an employers business

Trolls are often dismissed as sad little people of no consequence yet it is becoming important for employers to educate themselves and their staff on the existence and activities of such trolls and to have a plan to react to such issues should the need occur.

Use of social media has resulted in some high-profile employment tribunal cases where it affects work to a greater or lesser degree. An employer can be held vicariously liable for harassment or “trolling” caused by one of its employees. This means any employee subject to unwanted conduct in the course of employment by a “troll” colleague could raise a claim against his or her employer. This could arise even if an employer is unaware of the troll’s existence or online activity.

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How should employers combat in-house trolls? To start with, clear guidelines need to be set out. If not already in existence, employers need to draw up a social media policy. This should address what use of social media is or is not permitted, at what times social media sites can be accessed by employees, whether commenting about the employer is permitted, whether such sites can be used for business development purposes and, if so, who is in charge. Given the increasing use of social media for work purposes, such policies should include reference to “inappropriate” and “unauthorised” content. Employers should also ensure staff handbooks include examples of social media-related misconduct within the definition of gross misconduct. Once a policy has been implemented and employees made aware of it, employers should be prepared to take meaningful disciplinary action, where appropriate, if the policy is subsequently breached.

While consistency is essential, employers should avoid kneejerk reactions when responding to social media misconduct with each incident treated on a case by case basis. Action should depend on circumstances such as: the nature and seriousness of the alleged misuse; any previous warnings for similar misconduct; actual or potential damage to customer or client relationships.

As ever, company bosses need to be prepared to be challenged by potential human rights arguments. These may include an employee claiming a right to privacy and family life (and possibly freedom of expression) in relation to Facebook posts in private time, even if the comments related to a place of employment.

Happily for employers, tribunal judgments are clear that, while these rights are recognised in the UK, they are limited to what is proportionate in the circumstances. It is extremely unusual for an employee to be able to rely upon an expectation of privacy and family life in respect of social media posts. Tribunals have generally found that, once something is posted online, the author loses control of it and it becomes relatively easy for comments to be copied or forwarded on to others. On this basis, the right to privacy and family life is generally not triggered in such circumstances. Similarly the right to freedom of expression on social media requires to be balanced against an employer’s entitlement to protect its reputation. However it is always possible the fairly sensible consensus referred to above will be overturned by an employee cleverly using the human rights tool to pursue their case. An employer faced with such a situation would do well to take advice and not be lulled into thinking the precedent set by previous tribunal rulings mean claims based on human rights legislation can be brushed aside.

While JRR Tolkien’s trolls can be deadly to opponents and Dreamworks trolls can be incredibly annoying, they are the stuff of fantasy.

In the real world, single internet troll can cost an employer thousands of pounds in compensation, which is why it makes sense to seek pre-
emptive advice about trolling.

Simon Allison is head of employment at Blackadders.