10 years ago the phrase “cyber bullying” simply didn’t exist, but in modern society, bullying is not confined to the school playground and is ever evolving through technology.
The news headlines are filled with stories of “online hate campaigns” waged against individuals through social media such as blogs and social networking sites, private and inappropriate photos being shared via mobile devices or vindictively posted and abusive attacks on teenagers whilst playing online games.
These malicious acts may be carried out in cyberspace but they still have a serious and damaging impact on the victims.
For example, Anita Sarkeesian the creator of the Tropes vs. Women in Video Games video series in 2012, has recently been threatened with rape, death and had a game created about her called Beat Up Anita Sarkeesian.
This is not to mention the relentless abuse of unrepeatable names being hurled at her in emails, on Twitter and in comments under the videos she produces — all because she critiques video games.
Cyber bullying is also becoming prevalent in the workplace.
Findings from the Punched from the Screen report showed that in 2012 eight out of ten employees had suffered some form of cyber bullying.
This could have been receiving an offensive email or text, or being humiliated, ignored or gossiped about online.
Employers need to be alive to this and put in place effective mechanisms to protect their staff.
THE LEGAL POSITION
Whether bullying is face-to-face or in cyberspace, the laws surrounding harassment, bullying and discrimination are the same.
The words “harassment” and “bullying” are often used interchangeably in the workplace.
Whilst the impact on the victims can be the same, there are significant legal distinctions between them, the most important being that it is not possible to make a complaint to an employment tribunal for “bullying” alone (unless it so serious to constitute a constructive dismissal and the employee has the requisite service to claim constructive unfair dismissal).
Harassment is helpfully defined under the Equality Act 2010 as unwanted conduct related to a relevant “protected characteristic”, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.
The victim need not possess the relevant characteristic themselves; the harassment can be because of their association with a person who has a protected characteristic.
By contrast, bullying is not defined by statute.
However, The Advisory, Conciliation and Arbitration Service characterises bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”, which equally applies to online/electronic communications, not just in person.
Cyber bullying can be more complex than traditional workplace bullying.
Employers have struggled to keep pace with the rate of technological change and now face further challenges with the bullying of employees being conducted out of working hours and away from work premises.
HOW TO DEAL WITH CYBER BULLYING AT WORK
Employers must ensure their anti-bullying, harassment and disciplinary policies are up to date and provide clear guidance on the use of social media, IT and communications.
Out of date anti-bullying and harassment policies which do not include social media are likely to be ineffective in a modern workplace and could impact on an employer’s ability to maintain the standards of behaviour they expect from their staff.
However, employers should avoid unduly interfering and imposing unnecessary restrictions on the organisation's use of social media, which is increasingly used as a platform to advance business objectives.
Striking the right balance to ensure policies are effective but not too restrictive is vital.
A well drafted anti-bullying and harassment policy should:
- Clearly state that any harassment or bullying of staff will not be tolerated. It is good practice for employers to give examples of what is unacceptable behaviour in their organisation, as it is the “grey” areas which often cause the most problems.
- Make it clear that harassment will be treated as a disciplinary offence.
- Clearly explain how staff can make a complaint, informally and formally.
- Make it clear that complaints of harassment will be dealt with within a reasonable time, treated seriously and confidentially, and that someone complaining will be protected from victimisation.
- Describe what support is available to staff if they think they are being bullied or harassed (for example, counselling or a worker assistance programme).
- Inform staff of any relevant training/other resources available.
It is important to communicate guidance clearly, monitor compliance and ensure enforcement is uniform throughout the organisation.
Inconsistent enforcement may lead to discrimination or unfair dismissal claims.
To effectively monitor and enforce compliance an employer must have the ability to monitor and retrieve content from employees’ telephones, emails, voicemail messages and internet usage.
Organisations will of course need to install adequate IT systems to effectively monitor employees’ communications.
However, it is equally important to have a clear IT and monitoring policy which outlines the standards expected when using IT systems.
That said, monitoring should only be carried out to the extent permitted by law.
Employees’ privacy must not be abused or compromised, unless it is necessary and justifiable as required by law or for business purposes.
The benefit of having a policy of this nature not only allows employers to check emails and social networking sites where there are reports and instances of cyber bullying, but it should also act as a deterrent if employees know their actions are being watched.
Some organisations are discussing the merits of extending their policies to cover cyber bullying outside of the workplace.
Whilst for some this may feel like a step too far by encroaching into an individual’s private life, others feel it is a necessary evil as cyber bullying can have a real and harmful effect on the victims.
A recent ground breaking case has established that if a person manipulates another to send them inappropriate pictures (known as “sexting”), and as a result the victim suffers psychological loss, they can be compensated.
This is certainly a topic up for further debate.
However, employers should only seek to introduce a wider policy of this nature after carrying out a full consultation with employee representatives and/or relevant trade unions.
Training should be initiated to address and raise awareness of bullying and harassment in the workplace.
Managers should be responsible for ensuring that policies are implemented effectively and fairly and all members of staff should be responsible for supporting colleagues and ensuring that the organisation’s standards of behaviour are adhered to.
Employers must ensure action is taken to prevent bullying and harassment, whether “on or offline”.
First and foremost, because employers have a legal duty to ensure that their employees have a safe working environment, free from bullying and harassment, but also because the effects of such behaviour can have a detrimental effect on the business.
For example, poor morale amongst the workforce, loss of respect for management, loss of productivity, absences, resignations, as well as tribunal and court cases which can be costly and severely damage the organisation’s reputation.