Acas has been busy with its new guidance recently and so have the Employment team’s vacation students. Here is a cautionary piece on cyber bullying in the workplace by Simon Watts-Morgan.

The unstoppable rise of social media and online networking has led perhaps inevitably to the emergence of a new type of workplace bullying – cyber bullying. If you are not familiar with the term, cyber bullying is defined by Acas as “any form of bullying, harassment or victimisation online.” Acas has recently released guidance on cyber bullying and how it can be appropriately dealt with at work, which addresses several key issues.

The Acas guide highlights cyber bullying as an important issue for employers to understand and deal with. Cyber bullying ranges from the leaking of sensitive information, use of threatening or offensive comments online to the posting of inappropriate photographs. This can have a number of potentially negative consequences for organisations, for example:

  • affecting morale and employee relations;
  • leading directly to absence and/or resignations;
  • affecting productivity and overall performance; and
  • creating a loss of respect for Managers and/or Supervisors.

Although it is not possible to make a claim to an Employment Tribunal about bullying in isolation, it is possible to bolt it onto something else, such as victimisation and harassment, discrimination (if, for example racially or religiously motivated etc.), constructive dismissal or, depending on the severity, personal injury.

Cyber bullying can be accidental in the sense that as the person responsible may not be aware that their behaviour was unwelcome or offensive. For example, just because something is labelled as a joke does not necessarily mean it was taken as such, and lack of intention to upset will not be a defence. The same is true of efforts to keep your photos or remarks private or limited to a small circle of “friends” – if they reach the workplace nonetheless, that is your look-out. We also know nothing is lost forever in the online works except your privacy, dignity and job prospects.

If the offence was accidental was it genuinely an instance of cyber bullying? The answer is unclear. To me, bullying implies an element of malice, as otherwise it is just poor management or chronic lack of social skills. The main difference is the way in which employers rectify both situations. For example, if the “bullying” was accidental it may be possible to remedy matters in a more informal sense, such as drawing the behaviour to the offending employee’s attention and explaining its effect. This may be enough to prevent repeat occurrences. On the other hand, if the bullying is intentional then the matter may have to be dealt with more formally and could be subject to disciplinary procedures.

Social media and social networking sites are used outside both the workplace and working hours, so this poses another issue. The Acas guide suggests that in order to tackle this, employers should consider broadening their bullying policies to prohibit expressly bullying both on and off site and the work email system in and out of working hours.

Lessons for Employers:

  • Review current bullying and harassment policies to ensure cyber bullying is incorporated.
  • Have set procedures for reporting instances of cyber bullying and have processes in place to consider the severity and correct disciplinary approach to take. These need to be very different from ordinary bullying or harassment pro cesses but they do need to make it clear that the employee has no less responsibility for what he says online than what he says in personal in more traditional forms of bullying.
  • Inform employees of what is expected form them online and provide training and affirm policies already in place.
  • If you are unsure about what may constitute cyber bullying or the correct approach to take, speak to your legal advisors.