An employer’s guide to dealing with cyber bullying
Whilst it is difficult to measure the frequency of cyber bullying in the workplace, there is no reason to believe it is any less prevalent than conventional bullying.
In 2012, a study conducted by the University of Sheffield and the University of Nottingham (“Punched from the Screen”) found that up to 80% of respondents had been the victims of cyber bullying. The study drew on three separate surveys, conducted among employees in a number of UK universities. 14 – 20% of the 320 respondents experienced cyber bullying at least once a week – a similar rate to conventional bullying. Since this survey was conducted, social media usage has increased and cyber bullying may therefore have increased as well.
As an employer, you could be liable for cyber bullying in a number of ways. The courts have held that ‘in the course of employment’ should be construed broadly – essentially, if anything happens during business hours or in circumstances where the bully uses the employer’s IT equipment or server, the employer is at risk. Particular risks include:
- Employers have a duty to provide a safe place of work under Health and Safety legislation. If they fail in this duty by failing to protect victims of bullying, they could be liable.
- Under the Prevention from Harassment Act, employers could be held vicariously liable if the victim is harassed by one of his or her colleagues in the course of the bully’s employment.
- Employers who fail to respond to complaints of online bullying could face claims of constructive unfair dismissal.
- If the bullying is related to a protected characteristic under the Equality Act, it is likely to constitute harassment and give rise to a claim of unlawful discrimination – even if the victim does not hold that protected characteristic.
It can be difficult to react appropriately to cyber bullying when comments are posted anonymously and the bullies hide behind pseudonyms. Monitoring of internet usage may go some way to combating this (providing you have made clear to employees that they are subject to monitoring), but, with the rise of smart phones, it’s likely that bullies will use their own devices rather than their employer’s.
Instead, make sure you implement well thought out, transparent and clear policies on social media and bullying and harassment, which are appropriate to your organisation. Your company should provide training for employees on how the policies apply and warn of the consequences of breaching these policies. When faced with an employee who has breached a policy, you should react consistently and proportionately.
We believe the following cases are indicative of the current view of how cyber bullying will be treated by Tribunals and regulatory bodies:
In Otomewo v Carphone Warehouse Ltd, two employees of Carphone Warehouse took the mobile phone of their manager and updated his Facebook status to: “Finally came out of the closet. I am gay and proud.” Mr Otemewo successfully sued his employer for harassment on the grounds of sexual orientation, even though he was not gay and the two employees knew that he was not gay.
Teggart v TeleTech UK Ltd, concerned an employee who had posted obscene and offensive comments on his Facebook page about a colleague. He was dismissed and he claimed that the dismissal was unfair. The Tribunal disagreed. Even though Mr Teggart posted his comments outside working hours on his home computer, he was found to have breached his employer’s dignity at work policy, as the comments related to a work colleague and affected the working environment.
In 2011, a police constable was summarily dismissed after he posted ‘deeply offensive’ comments on his Facebook page about a colleague. In its findings, the IPCC commented that his behaviour had resembled a ‘nasty schoolyard bully’. (http://www.bbc.co.uk/news/uk-england-london-13889845).
Employment Tribunals clearly take cyber bullying as seriously as any other form of harassment and are reacting accordingly. They also recognise that, as an employer, you should be given the freedom to discipline employees even where the conduct happens outside the workplace.
Taking the right preventative action will not only help to protect you against issues that arise from cyber bullying – it’s worth noting that many of the cases involving the misuse of social media seem to involve employees damaging the reputation of the employer. Putting the right policies in place should also help with this increasingly common problem.
This article was first published in Lexis Nexis.
For more information, please contact Will Winch, Solicitor in Employment.