It is hard to remember a time when we used to come into our offices, consume Pret sandwiches, and see colleagues in real life and not through the pixels of a screen. Perhaps one day we will revert to a time where the phrase “you are on mute” is not part of our daily conversation, however for now it certainly feels like our interactions with others through the screen is here to stay.
Whilst for the most part we have adapted to this new way of working, there are still challenges which employers should remain mindful. Working remotely gives rise to all sorts of problems (including one unfortunate lawyer’s recent anamorphism into an adorable cat during a virtual hearing). One very concerning symptom of remote working is the rise of cyber bullying.
What is cyber bullying?
Cyber bullying is any form of harassment or bullying that takes place online or through the use of electronic devices. It can occur in many different forms (including through social media platforms, texts, apps and emails) and can include behaviour such as posting inappropriate pictures, sending offensive messages or threats, or threatening to reveal personal information online. Cyber bullying could also take the form of micro management of staff, where the employee may feel harassed due to heightened monitoring and assessment undertaken by employers to ensure that employees are still productive whilst working remotely. Employers may be monitoring the amount of time employees spend working, and linked to that there may be unconscious biases about gender, race and age, which influence how a manager deals with issues related to remote working.
In comparison to workplace bullying, cyber bullying can potentially be easier for employers to investigate. The nature of cyber bullying means that often there is some form of a “paper trail” where negative comments or threats can be viewed by employers. However, cyber bullying can often take a more subtle form than workplace-based bullying. In some instances, an individual may not even be aware that they are the victim of cyber bullying; for example, if they are the subject of rumours being spread online that they don’t know anything about.
Understanding what constitutes cyber bullying is now more important than ever as most people are still working from home, and the majority of our interactions with our work colleagues are currently taking place online. The use of technology as a tool for cyber bullying and the blurring of our work and home life means that the harassment does not necessarily only occur during working hours, and does not necessarily end when the individual leaves work.
Impact of cyber bullying
Cyber bullying can have a significant impact on the emotional health of those experiencing it, and often the victim of cyber bullying will feel distressed and isolated. They may also experience difficulty sleeping, feel a lack of motivation or suffer from high levels of stress, as a result of the bullying. In some circumstances cyber bullying can lead to the employee in question resigning from their role, in an attempt to escape the harassment.
However, cyber bullying does not only negatively affect the individual who is subject to it. Cyberbullying can also lead to low morale in an organisation and can cause poor employee relations. It can also affect the productivity and performance in an organisation which may be exacerbated by the resignations and absences of those facing the cyberbullying. In addition, it can result in a loss of respect for the managers and supervisors of an organisation, especially if the employees are of the opinion that they did not do enough to resolve the issues around cyber bullying.
Cyber bullying and harassment claims
An individual cannot bring a free standing bullying claim if they experience bullying in the workplace. However, if an individual who is subject to cyber bullying has a “relevant protected characteristic” they could bring a claim for discrimination under the Equality Act 2010. A “relevant protected characteristic” is classed as an individual’s age, disability, sex, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or race.
In addition, an employee could bring a claim for harassment – either linking it to a protected characteristic or for sexual harassment, or under the Protection for Harassment Act 1997 (where it does not need to be linked to a protected characteristic).
Harassment at work is considered to have taken place under the Equality Act 2010 if an employee is:
- subject to unwanted conduct that is related to a protected characteristic
- which has the purpose or effect of violating the worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.
It is evident that instances of cyber bullying could fall under this definition, and employers should be aware that an individual does not have to explicitly say that they object to the online conduct for it to be classed as being unwanted.
In extreme cases of bullying, some behaviours could amount to a criminal offence, depending on the nature of the behaviour (for example a threat to reveal personal information online).
Employers have a duty to take all reasonable steps to prevent harassment and the victimisation of the individuals who work for them. Therefore, it is essential that employers actively discourage cyber bullying, otherwise they could potentially be regarded as being vicariously liable for the harassment that has taken place online. In the context of cyber bullying, (which can often take place completely separately from the work environment), even if an employer is not aware that harassment has taken place, they can still be liable under the Equality Act.
Tackling and preventing cyberbullying
Employers can take proactive steps to minimise the risk of cyber bullying taking place and to take decisive action when it does take place. Set out below are the steps that employers can take in order to demonstrate that they have taken reasonable steps to discourage cyber bullying inside and outside of the workplace.
A reference to cyber bullying should be included in the employer’s bullying or harassment policy and disciplinary and grievance policies, making it clear that cyberbullying, along with any other form of bullying, constitutes a disciplinary offence and will not be tolerated.
Employers should implement a reporting system which makes it easy for individuals to report online abuse. Employers should consider whether it would be beneficial to use an external system to allow employees to report any instances of cyber bullying, anonymously if necessary. An effective reporting system will potentially have the effect of encouraging a greater number of employees who have experienced cyber bullying to report it.
Employers should take a firm approach if they do uncover instances of cyber bullying. A cyber bullying claim needs to be investigated by the employer sensitively, promptly and fairly. This will reinforce the message that any instances of cyber bullying will be dealt with seriously by the organisation.
Checking staff accounts
It is possible to check an employee’s social media account or work email in order to investigate an allegation of cyber bullying. However, it should be noted that an employer needs to have a legitimate reason for doing this under data protection law. The employee in question must also have been made aware of their employer’s right to monitor their online accounts in this way.
Open and inclusive workplace
Promoting an open and inclusive workplace where there is a zero-tolerance approach to unfavourable behaviour is a key factor which will discourage harassment and cyber bullying in the workplace. This kind of environment will also mean that employees are more likely to feel comfortable reporting any instances of online bullying.
Cyber bullying training
In the light of the switch to remote working, employers may also consider implementing training on the correct use of social media. This could ensure that employees understand the professional standards of behaviour they are expected to adhere to online, and are clear in their understanding of the type of behaviour that is classed as cyber bullying.
The pandemic has shifted the landscape of our working environments and it looks like remote working will continue to be in place in some shape or form, even when we do return to our offices. It is therefore essential that employers understand what cyber bullying is, and the negative impact that it can have both on individuals and the organisation itself. Employers can then mitigate the risks that cyber bullying presents and ensure that they create a workplace where cyber bullying is not tolerated. Implementing the steps outlined above will not only be beneficial for individual employees but will also protect the organisation as a whole.
With special thanks to Siobhan Murray, a paralegal in the Employment team, for co-authoring this blog.
If you require further information about anything covered in this blog, please contact Shehnal Amin, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2021