Cyber-bullying: Legal Q&A

Cyber-bullying has been in and out of the news lately. For example, last month a teenager who posted a death threat on Facebook became the first person in Britain to be jailed for online bullying. And research indicates as many as one in 10 employees suffer from cyber-bullying at work, so employers should be aware of their responsibilities.



Q What is cyber-bullying?


A It is any use of information and communications technology to support deliberate and hostile attempts to hurt, upset or embarrass another person. Examples include sending abusive e-mails and phone calls, posting comments on websites such as Facebook or Twitter, hacking into other people’s accounts and sending viruses. Cyber-bullying tends to be associated with schools, but employers should be aware that staff who receive offensive e-mails or phone calls from colleagues or customers could be the victims of cyber-bullying in the workplace.



Q What should employers do to reduce the risk of cyber-bullying happening in their workplaces?


A Employers should ensure that they have up-to-date, effective IT policies which set out clear consequences for non-compliance. Disciplinary policies should make it clear that cyber-bullying may constitute gross misconduct, and could result in summary dismissal.



Q Can employers take more Draconian measures?


A Well, they could ban the use of social networking websites or personal mobile phones in the workplace, but should bear in mind that this will have little effect on cyber-bullying, which can take place outside of working hours.



Q What legislation must employers abide by?


A Those that monitor employees’ internet and e-mail use to reduce the risk of cyber-bullying should ensure that they comply with their obligations under the Regulation of Investigatory Powers Act 2000, the Data Protection Act 1998, and the Telecommunications Regulations 2000.



Q What should an employer do if an employee complains about being cyber-bullied?


A The most important consideration is to ensure that the employee receives appropriate support and is convinced that their employer is taking the matter seriously. Employees should be encouraged to preserve all evidence of cyber-bullying by saving e-mails, logging phone calls and taking screen-prints of websites. Much will depend on the identity of the cyber-bully. If it is a fellow employee, employers should conduct an investigation and, if appropriate, take disciplinary action. If the employer decides to take disciplinary action it should ensure that it complies with the Acas Code. If the cyber-bullying involves illegal content or contains threats of a physical or sexual nature, employers should inform the police.



Q If an employer fails to act appropriately on a complaint, what legal action may they face from the employee concerned?


A Employees cannot make a complaint to an employment tribunal for cyber-bullying alone. However, if the cyber-bullying relates to their sex, race, disability, sexual orientation, age or religion, they may be able to bring a claim for discrimination and/or harassment. In serious cases employees may choose to resign and bring a claim for constructive dismissal. Employers owe a duty of trust and confidence to their employees, and a failure to take cyber-bullying seriously or to prevent it from recurring could breach this duty. For this reason it is crucial that employers take appropriate action to deal with cyber-bullying and treat it as seriously as face-to-face workplace bullying.



Q Will an employer be liable for complaints that follow cyber-bullying?


A Employers may be liable for discriminatory acts of their employees, but at present will generally not be liable for the acts of third parties such as customers or visitors to the office unless there is a discriminatory reason why the employer failed to prevent the harassment. However, the forthcoming Equality Bill will change this, and employers may be liable for discriminatory cyber-bullying committed by third parties. If an employee complains that, as a result of cyber-bullying by a fellow employee, he has been constructively dismissed, the employer may have a defence if it can show that the cyber-bully was acting outside the scope of their employment. However, the employer could be liable for harassment by a third party if the employer is in breach of the implied duty to provide a suitable working environment. Employers have a duty to take reasonable steps to protect their staff from bullying and harassment and a failure to do this could mean the employer is liable for a constructive dismissal claim arising from cyber-bullying.


Catrin Llewellyn, solicitor, Reynolds Porter Chamberlain

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