By Donna Reynolds
CYBER-bullying is probably more closely associated with children and teenagers, but digital bullying represents an extension of traditional workplace bullying that has long been recognised as a widespread problem in UK plc.
Of course, the bullying of colleagues pre-dates the printing press. However, the growth of new technologies, and the anonymity offered by them, has dramatically increased the opportunity to bully and harass colleagues.
So when does trendy social or corporate networking become something else?
If there were 50 ways to leave your lover, there must be at least that number of opportunities for electronic intimidation. Even a list of methods quickly adds up: SMS and MMS messages, mobile telephone, instant messenger services, circulating photos or video clips or posting comments within Web 2.0 sites, blogs or chat rooms. And none of these methods switches off at 5pm. Now bullies can invade our private lives 24/7.
The good news is that many employers have sought to articulate anti-bullying principles and policies. The bad news is that some are failing to implement them effectively. In fairness, what is tagged as bullying by one person may be regarded by another as perfectly appropriate workplace behaviour. Team-building is great but when does banter become bullying?
Bullying is just so diverse; it may be as subtle as simply excluding a colleague from round robin e-mails or as demeaning as a supervisor launching into what is effectively a public dressing down by sending an e-mail. That said, the nature of bullies has not changed – just their modus operandi.
Unsurprisingly, however, many bewildered employers are simply at a loss how to tackle the issue.
There is no consolidated piece of legislation dealing with cyber-bullying but there are various ways in which employees can bring employment tribunal proceedings in relation to bullying for which the employer may be liable, either directly or vicariously, if the bullying is perpetrated by employees in the course of their employment.
These range from contractually based claims, such as failing to provide a safe system of work or a breach of the implied duty of mutual trust and confidence to the statutory rights afforded, for example, under the Employment Rights Act 1996 (both examples typically depending on the employee resigning and claiming constructive dismissal).
There is also discrimination legislation where the bullying or harassment is based on, or makes reference to, someone’s sex, age, race, sexual orientation, religion and/or disability. Sending racist jokes or pornographic pictures by text or e-mail to a colleague may, if perceived as offensive by the recipient, amount to harassment.
Additionally, employees may seek to address cyber-bullying by means of the Protection from Harassment Act 1997. Though originally intended to deal with the problem of stalking, it allows an employee to complain about a course of conduct pursued by a colleague that causes alarm or distress, even though it may not amount to harassment under discrimination legislation.
This is a criminal offence and substantial damages can be awarded where the conduct engaged in by employees is likely to cause harassment that has a close connection with their work.
But when are cyber-bullies misbehaving in the course of their employment? What people get up to in their private lives is largely their own business. However, if an employee conducts himself in a manner so described within the vicinity of the workplace, or during an occasion associated with the employer, which brings the employer into disrepute, it could result in a disciplinary warning or even dismissal.
Thus a negative characterisation of a colleague posted by a cyber-bully on a workplace blog or even internet sites such as Facebook or MySpace may conceivably be deemed to be in the course of employment, as could an admirer’s “test the water” text to a colleague from a work Blackberry.
Having said all of that, the law is unclear and off the pace. Until it catches up, the starting point for employers in minimising the risk is to devise a policy that makes it clear that there is zero tolerance towards bullying and harassment.
Giving a number of non-exhaustive examples is likely to be helpful. The policy should also provide employees with a safe and, at least in the first instance, private means of redress either through the grievance procedure or a specific procedure for allegations of bullying and harassment.
Employers may also wish to consider whether lawfully monitoring employees’ use of e-mail, internet and social networking sites might go some way to deterring bullies who use the employer’s technology.
• Donna Reynolds is head of employment at CCW Business Lawyers
Workplace policies must improve to check cyber-bullies – Scotsman.com News