The ever increasing presence of social media in our lives, whether old or young, is undeniable. Although it has its benefits, the risks of bullying via social media in an employment context cannot be ignored, and represents a developing threat to businesses which employers must manage effectively.
The problem is not new. In 2013 UNISON, one of the UK’s largest trade unions, said in its anti-bullying guidance that cyber bullying is as common as the more traditional face-to-face workplace bullying. It claimed that eight out of 10 workers experienced one occasion of cyber bullying in the last six months of the report, with 14% to 20% experiencing it on a weekly basis. These ugly statistics denote a very different type of bullying evolving alongside technology. So what are the core characteristics of cyber bullying compared to traditional workplace bullying?
First, perpetrators benefit from the anonymity of cyber bullying, a lack of physical confrontation which affords bullies to be more ruthless in their harassment and behave in a way which they may not normally in person. Posts on social media are written, not spoken, so there is an element of permanence not present in face-to-face bullying. Facebook remains the world’s most popular social networking site and in 2016 the number of users in the UK reached 32 million, roughly half of the UK’s population. Such posts may be viewed by an unlimited amount of people, so there is scope for an extremely wide audience and greater humiliation for the victim. The victim may not even be aware that he or she is being targeted, making them more vulnerable to abuse when or if they discover that they have been targeted. Cyber bullying is not restrained by either time or location.
If bullying between colleagues takes place outside of work, should the employer care? The short answer is yes. Besides the obvious motive of protecting your employees from abuse, the threats to your business arising from failing to take action against incidents of cyber bullying could be far reaching. At the very least, the victim could suffer low morale and loss of productivity. In severe cases the impact of bullying on the physical and mental health of the victim may lead to absences and sick leave. If the injured employee takes legal action against the employer, the financial cost of compensation and legal fees as well as the cost to the employer’s reputation may be costly.
In the recent Australian case of Rachael Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, the Fair Work Commission, Australia’s workplace tribunal, held that the act of one employee removing a colleague from her list of friends on Facebook following a workplace dispute was unreasonable behaviour amounting to workplace bullying. However, unfriending someone on Facebook will not always amount to bullying behaviour as each case is fact specific. In Roberts, this aspect grabbed global headlines and was met with a fairly unsympathetic response from readers of online news articles, with many complaining that the act of removing someone on Facebook does not warrant being labelled as bullying. This is perhaps unfair to the victim in this case, as this was only one allegation out of 17 of aggressive, belittling and excluding behaviour over a two year period, which led to her being certified unfit for work. Nine out of the 17 allegations were found by the judge to be made out.
The Roberts case is a good example of how social media enables workplace bullying to continue beyond the office and is exactly why employers should worry about the online conduct of their employees. Mrs Roberts only discovered that she had been removed from her colleague’s list of Facebook friends because after a workplace dispute she suspected that her colleague might have made a comment about it on the social media site and went to check. The judge commented that the act of removing the victim on Facebook demonstrated a ‘lack of emotional maturity’.
Social media also provides a forum for bullying behaviour that can amount to discrimination. Employers can be vicariously liable under the Equality Act 2010 for acts of harassment in relation to the protected characteristics of age, disability, gender reassignment, race, religion, sex and sexual orientation unless they can show reasonable steps were taken to prevent the harassment.
In the English case of Otomewo v Carphone Warehouse Limited [2012] ET 2330554/11, two employees used the store manager’s iPhone without his permission and updated his Facebook status to read: “Finally came out of the closet. I am gay and proud.” The employment tribunal found the employer liable for their employee’s acts of harassment on the grounds of sexual orientation. Employers should be mindful of the fact that compensation is uncapped in successful discrimination claims.
The best practice is for employers to implement and periodically review their social media policy that should include guidance on what is acceptable and unacceptable behaviour, and to set out how incidents of cyber bullying can be reported so that complaints can be dealt with effectively. This is particularly so given that claims for bullying and harassment are increasing. The policy should make clear that bullying is a ground for disciplinary action and that cyber bullying will be treated in the same way as offline bullying. Employers could include training on such policies as part of their induction procedures for new staff, as well as refresher courses for longer serving members of staff. Such positive action by employers is vital as not only does it allow the employer to set and maintain the standards of behaviour expected of employees but it allows an employer to show that a dismissal for unacceptable behaviour was fair.
In Teggart v TeleTech UK Limited ([2012] NIIT 704/11 [pdf]), an employee posted vulgar comments about the victim, a colleague, on Facebook. As such behaviour was in clear breach of the employer’s anti-bullying policy, the employee’s subsequent dismissal was found to be fair. The policy had made clear that harassment, whether it took place on or off premises or during working or non-working hours, would not be tolerated. However, anti-bullying policies should be seen as a preventative measure rather than a cure for bullying that is already taking place. In Roberts, the tribunal noted the respondents’ argument that, since the claim had been brought, an anti-bullying policy had been implemented and therefore any continuing risk of bullying of the victim was denied. The judge did not agree with this as in his view the respondents had shown a lack of understanding that the behaviour complained of constituted bullying, which suggested that the bullying was likely to continue.
Rhory Robertson is a partner and Clare Taylor a paralegal in the Collyer Bristow Media and Privacy team.
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