New ACAS guidance on cyber bullying

We live in an increasingly online world, where virtually every aspect of our lives, from shopping to running our central heating seems to be affected by the internet. This is particularly true in the way that we socialise; it’s rare to find someone who isn’t in some way a user of social media, particularly amongst the younger generation.

However, like all new developments, the rise of social media has its darker side; a new type of workplace bullying known as cyber-bullying has emerged.

ACAS defines cyber bullying as “any form of bullying, harassment or victimisation online” and has recently released guidance for employers on this phenomenon and the way that it can be dealt with, should it arise in the workplace.

Cyber bullying can cover a variety of behaviours, including:

• Leaking of sensitive personal information with the aim of embarrassing or humiliating the victim (sometimes known as ‘doxing’).

• Posting of inappropriate photographs (often known as ‘revenge porn’) to cause embarrassment to a particular person and damage their social standing.

• Using offensive or threatening comments online to try and silence or intimidate someone.

As can be imagined, an organisation where this kind of behaviour happens can be negatively affected. Staff morale can be damaged. Relations between employees can become soured, particularly if it is not immediately apparent who is behind the bullying. Resignations and staff departures may increase due to staff not wanting to work in an environment where cyber bullying occurs. Rates of absence may go up due to stress caused by the bullying itself.

Productivity and performance can be reduced. Managers and supervisors may experience an erosion of authority and respect, making it harder for the company to operate effectively.

Bullying as an isolated behaviour will not lead to an Employment Tribunal case but it is possible for it to form part of – and exacerbate – another form of behaviour such as victimisation and harassment, discrimination, constructive dismissal or, depending on the severity, personal injury.

Whilst many instances of cyber bullying are deliberate and malicious in their intent, it’s possible that the perpetrator may not have been aware of the consequences of their action.

It’s not always possible to anticipate the effect of a joke or ‘humorous’ comments online and the lack of intention to upset won’t be a defence if disciplinary action is taken.

Some instances of cyber bullying have started out as comments on what was thought to be a small and private online group where privacy settings were switched on. However, it only takes one person to share a comment outside that group and the chances of it reaching the workplace increase dramatically. Once that happens, the originator of the comment will find themselves in as much trouble as if they had made the comment directly on the open internet.

There may be instances where the offence in question was purely accidental and no malice was intended. If this is the case, could the act be classed as cyber-bullying?

The answer will govern the way that the offence is handled by the employer. If the action was unintentional, the employer may be able to deal with things in a less formal fashion; this can include bringing the behaviour to the attention of the employee in question, letting them know what effect they have caused, and perhaps bringing in awareness training to avoid the same situation happening again.

However, if the offence is particularly egregious and there is a strong element of deliberation and intentionality about the action the employee has carried out, the employer will have to take more formal steps to deal with what has happened. This may well include disciplinary procedures.

What should employers do?

• Take a look at bullying and harassment policies and make sure that cyber bullying is covered under them. If it isn’t, either include it or draw up a separate cyber bullying policy.

• Consider expanding the bullying policies to ensure that cyber bullying on and off site and use of the work email system both in and out of working hours are covered.

• Make sure there are set procedures in place so that allegations of cyber bullying can be reported.

• Make it clear to all employees that they have no less responsibility for what’s said online than would be the case in face-to-face bullying.

• Tell employees about the standards of behaviour expected of them when online. Use training to ensure that they are aware of this.

• Get legal advice if there’s any doubt about what counts as cyberbullying or how to handle it.

Monitoring electronic activity at work

If reports are received about cyber bullying and there is a belief that it is being carried out by someone inside the organisation, the employer may want to carry out monitoring of emails and social media sites so that evidence can be gathered to come to a conclusion.

It is, however, important to bear in mind that data protection laws mean the employer is obliged to advise the employees in question about the steps being taken. The employer should also make sure that they have legal justification for carrying out the surveillance.