Bullying: Tackling tormentors

The government recently issued guidance for schools on how to address cyber-bullying among pupils. But cyber-bullying isn’t just child’s play.

As the popularity of new technologies (cameras on mobile telephones, BlackBerries etc) and internet sites such as YouTube, Facebook, MySpace and other Web 2.0 sites has increased in the workforce, so too has the opportunity to bully and harass colleagues. Cyber-bullying is already rife in schools and, without prompt action by employers, is set to become a major problem in the workplace. What is this new phenomenon, and what steps can employers take to tackle cyber-bullying at work?

Cyber-bullying isn’t a type of bullying, it’s a method. And a workplace cyber-bully’s methods are as varied as their weaponry. They can bully using text messages, mobile phone calls, instant messenger services, by circulating photos or video clips or by posting comments on Web 2.0 sites, blogs or in chatrooms. Recent reports in the national press told of how a university library assistant was the victim of a campaign by students. More than 350 students who took exception to the assistant’s attempts to keep noise levels down posted offensive messages about him on Facebook.

Aggressive

The impact of cyber-bullying on victims can be more damaging than traditional forms of bullying. The anonymity afforded by new technologies allows cyber-bullies to be more aggressive than those who bully their victims face to face. What’s more, the bullying may not be confined to working hours. Employees who take BlackBerries home, or who use social networking sites, are inadvertently letting the cyber-bullies into their private lives.

Statistics show cyber-bullying is increasingly common in the workplace. A Dignity at Work Partnership survey found that a fifth of those employees interviewed had been bullied at work by e-mail, and one in 10 thought cyber-bullying was a problem in their workplace.

Failing to tackle cyber-bullying could be an expensive mistake for employers. According to the Chartered Institute of Personnel and Development, workplace bullying is estimated to cost UK business more than £2bn a year. Given the increased use of new technologies in the workplace, these costs could rise. And, as the suicide of KFC worker Hannah Kirkham indicates, the consequences of bullying can be serious. If the cost savings and moral arguments aren’t incentive enough, employers should not forget their legal duties to tackle cyber-bullying. If it is allowed to go unchecked, employers could face the adverse publicity and expense of legal claims.

While there is no single piece of legislation that makes cyber-bullying unlawful, however, employees could bring claims against employers under legislation covering harassment and discrimination.

Employees may resort to the Protection from Harassment Act 1997 (PHA) to address cyber-bullying at work. If it causes its victim alarm and distress, cyber-bullying can amount to harassment under the PHA. This is a criminal offence and courts can award substantial damages. Liability arises if employees engage in conduct likely to cause harassment that has a close connection with their work. So, if an employee harasses a colleague using a work BlackBerry, their employer could be liable.

In some cases, cyber-bullying may amount to harassment or discrimination on the grounds of sex, race, sexual orientation, disability, religion or belief or age. Circulating pornographic photos using a mobile phone to a colleague who finds them offensive could amount to sexual harassment, regardless of whether the harassment is intentional. When deciding whether someone has been harassed, a tribunal will look at whether, in all the circumstances, including the perception of the victim, it is reasonable to consider the behaviour as harassment. Employers will be liable for harassment under discrimination legislation unless they took reasonable steps to prevent it. The compensation a tribunal can award for discrimination and harassment claims is uncapped, and can include an award for injury to feelings.

Intolerable

Where the cyber-bullying has become so intolerable that an employee feels they cannot reasonably be expected to continue working for the employer, they may bring constructive unfair and wrongful dismissal claims, claiming that the employer has breached the implied term of mutual trust and confidence. An employee may also bring a personal injury claim alleging negligence against the employer, if they suffer psychiatric injury as a result of cyber-bullying.

Some cyber-bullies could also face criminal prosecution under various laws, including the Malicious Communications Act 1988.

So, how can employers minimise the risk of facing cyber-bullying claims? The key to prevention is to promote a work culture in which cyber-bulling is not tolerated. Clear, written and well-communicated policies should set out what is and is not acceptable use of the internet and other communications systems. Staff should also be trained to prevent bullying behaviour.

It is helpful to give concrete examples of what amounts to unauthorised use and the legal implications of any misuse – for example, circulating obscene images using e-mail, mobile phones or BlackBerries, and personal blogs that refer to the employer or colleagues without their consent. The policy should make it clear that media such as text and e-mail are less secure than letters. They could be read by the wrong person or misconstrued.

Consider blocking or limiting staff access to certain Web 2.0 sites and blogs during working hours and state that discriminatory, offensive or otherwise inappropriate comments about colleagues posted on such sites during or outside working hours are unacceptable.

Zero-tolerance

Making it clear that bullying and harassment will not be tolerated is vital. Staff should be provided with a means of redress either through the grievance procedure or a specific procedure to deal with bullying. Employers may also want to consider offering victims of workplace cyber-bullying access to a confidential counselling service.

Enforcing these policies consistently is crucial. Allegations of cyber-bullying should be thoroughly investigated, and staff acting in breach should be disciplined.

Not only should employers consider whether monitoring employees’ use of these technologies is appropriate to enforce policies, but employees should be made aware of the nature and extent as well as the reasons behind any monitoring that takes place. Any monitoring should take account of employers’ obligations under the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, and the Human Rights Act 1998.

Keeping an eye on patterns of absence in your organisation may help to identify cyber-bullying. If absences are particularly high in one team, it may be the result of a cyber-bully.

It is clear that employers need to take heed of the campaign being waged against cyber-bullies in the playground, not least because a generation of technology-savvy schoolchildren will soon be entering the workforce. If cyber-bullying claims are to be avoided, attitudes to these new technologies will need to change.

Hester Jewitt is an employment solicitor at Manches

Cyber-Bullying on the rise

  • Cyber-bullying is on the increase in UK organisations.
  • The impact of cyber-bullying can be more serious than traditional forms of bullying.
  • Cyber-bullying by employees can lead to claims against employers including breach of contract, negligence, discrimination and harassment claims.
  • Promoting a work culture where cyber-bullying is not tolerated is the key to minimising the risk of claims.
  • Effective policies and training for staff will also be crucial.
  • Employers should consider whether monitoring staff use of the internet, mobile phones, PDAs and Web 2.0 sites is justified.

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