Cyberbullying in the workplace is on the rise, according to a survey conducted by the CIPD in association with Ipsos MORI and Kingston Business School. And research suggests that women are more likely to be the victims of cyberbullying than men and line managers are the most common instigators, with the most prevalent sources of cyberbullying being Instagram, Facebook and Snapchat.
The Equality Act 2010 brought several pieces of legislation under one umbrella to protect workers with a protected characteristic. One such protection is against harassment. The Equality Act defines harassment as “unwanted conduct related to a protected characteristic that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual”.
Acts of cyberbullying resulting in a constructive dismissal claim can only be brought before tribunal if they are related to one of the nine protected characteristics (age, sex, disability, gender reassignment, marriage, pregnancy, race, religion or belief and sexual orientation). However, a failure to protect workers from cyberbullying can still leave an employer vicariously liable for their worker’s actions under the Protection from Harassment Act 1997, even where no protected characteristic is held.
Further, the Health and Safety at Work Act 1974 sets out the requirement for employers to provide a safe place of work for all workers. A failure to protect workers from cyberbullying could also render an employer liable for their worker’s actions.
This was evidenced in the case of Otomewo v Carphone Warehouse Ltd, where Carphone Warehouse was found to be vicariously liable for two of its employees’ actions. The employees removed their manager’s mobile phone and uploaded a post to Facebook stating: “Finally came out of the closet. I am gay and proud.” This case demonstrates the need to adequately protect your business via sound policies and training.
In Teggart v TeleTech UK Ltd, an employee posted offensive comments about a colleague. The employee was dismissed for his actions, even though the posts were made outside of working hours and on a home computer. In this case the tribunal agreed that the employee had breached the dignity at work policy as the comments both related to an employee of the company and such comments affected the workplace environment.
What can employers do?
A zero-tolerance of bullying has to be the starting point and this culture must be ‘live’ across all areas of the business, driven down through all levels of management.
Policies and procedures should be implemented consistently across the business. They should be aligned to all workplace policies; for example, email, internet and mobile phone usage; bullying and harassment; data protection; discipline and grievance; dignity and respect; and the company’s code of conduct.
Training on what is and isn’t permitted on social media should be provided. Workers should be informed what would constitute misconduct and the applicable sanctions. Workers are best advised to avoid expressing personal views about either the business or colleagues – except in circumstances where the person’s role warrants such a view; for example, a marketing manager.
Workers should be notified of the need to avoid posting derogatory or disparaging comments about the employer itself, its workers, employees, visitors or clients, whether intentional or not.
Employers should be mindful of the right to freedom of expression and the right to respect for private and family life (Article 8 and 10 of the European Convention of Human Rights). However, if there is a genuine belief that dismissal is necessary and within a band of reasonable responses, a tribunal will likely find such dismissal to be fair.
Deb Tweedy is an associate and head of HR and employment at Gordon Brown Law Firm