By Gwendoline Davies Walker Morris litigation lawyers  

Whose fault is it anyway? 

Litigation law firm Walker Morris is warning employers to beware the potential dangers and legal consequences which could flow from rash comments and ill-considered conduct of staff towards colleagues. Employers need to consider not only their own actions, but also ensure they are not held vicariously liable for things done by their employees in the course of their employment. In particular, they should note that the scope of this "course of employment" has been held to be very wide, and an employer could even be held liable for the acts of an employee even if that staff member was acting without the employer's knowledge or consent. It is vital that employers put in place policies making it clear that discriminatory, offensive or defamatory behaviour or comments by their employees will not be tolerated.  Such policies should also apply to the employer personally,  If in doubt – DON’T – should be the watchword for both employers and employees.    

DON'T act in the heat of the moment. Text messages and emails can have serious consequences. New technology has many advantages, but care must be taken to ensure that speed and informality do not equate to lack of regard to what is written or said.   Be warned - text message and emails can almost always be retrieved even if they have been "deleted"! 

DON’T make defamatory statements. DON’T say or write anything which you do not know to be true – and even then beware of the potential difficulties of proof and the obligation to prove the truth. New technology has increased the risks as it's possible to libel someone by email or on the internet.  It is no defence that you didn’t mean to cause offence: the Court will look at the ordinary and natural meaning of the words used, not what you thought that they meant.  

DON’T be guilty of conduct which could amount to breach of anti-race, sex or age discrimination legislation. In extreme cases, rascist comments or behaviour may amount to the criminal offence of incitment to racial hatred.   

DON’T disclose confidential information. 

DON’T be guilty of harassment. The legislation states that it could only take two incidents to constitute an offence. Again, the test as to what amounts to harassment is objective. It doesn't matter that your employee thinks that their conduct was acceptable if a reasonable person in possession of the same information would think the course of conduct amounted to harassment .  

DO – get legal advice quickly, whether you are the victim or if it is you or your employee’s statements or conduct about which complaint is made.