Cyberbullying and COVID-19 – what employers need to know
Whilst bullying and harassment in the workplace is nothing new (a 2020 study found that 15% of people had been a victim of workplace bullying) cyberbullying in the workplace is a relatively new phenomenon – and on the rise.
Simply put, cyberbullying is any bullying, harassment or victimisation that involves a computer, phone or tablet. Generally, cyberbullying is becoming more common, with a recent study showing that 36.5% of people feel that they have been cyberbullied in their lifetime, an increase from just under 18% back in 2007. It is inevitable that this trend is also now being seen within the workplace and employers need to be prepared for this.
In the context of work, cyberbullying might be as subtle as leaving someone out of a group chat but including all other team members. More overt methods of cyberbullying could include sending abusive or threatening emails to a colleague, stalking or harassing colleagues on workplace chatrooms, making inappropriate comments about a colleague via a messenger platform or circulating an indecent or inappropriate image.
In the case of Teggart v. TeleTech UK Ltd, a member of staff posted a comment on social media about a colleague, specifically her alleged sexual promiscuity. The perpetrator was duly dismissed and brought a claim of unfair dismissal. The Employment Tribunal held that the offender had harassed his colleague by posting offensive comments and as such held that the employer was well within their rights to dismiss him.
How can employers be dragged into the issue and what are the risks?
As well as having to deal with grievances raised and potential disciplinary issues, employers may find themselves vicariously liable for a perpetrator’s actions towards another employee either under the Protection from Harassment Act 1997 or the Equality Act 2010. This was illustrated in the case of Otomewo v. Carphone Warehouse where the employer was held liable for the actions of two of its staff who, as a prank, stole their manager’s phone and changed his personal social media account statuses.
However, the issue of vicarious liability can become more complex where an employee doesn’t necessarily direct the comment at anybody specifically and acts outside of work.
In Forbes v. LHR Airport Limited, an employee brought a claim against his employer where a colleague had posted a racist image on her personal social media account. As the post was made outside of working hours on a personal device, the employer was held not to be liable for this act. Would the outcome have been different had the post been made during office hours or from a work device? More than likely.
Having to defend a claim at any time can be costly for any employer, but where a possible protected characteristic is concerned (as in the Forbes case above) the amount of compensation is uncapped.
At the very least, cyberbullying can cause a breakdown in working relationships among teams and damage productivity. If left undealt with, the entire culture of an organisation can be tarnished.
Cyberbullying and COVID-19
Cyberbullying claims have increased substantially since the onset of COVID-19. With more people working from home and using online platforms to connect with colleagues and clients, the blur between home and work life has seen many abandon office etiquette.
While the use of video messenger has helped keep teams bonded throughout lockdown, many employees have found themselves in hot water having forgotten that after-work drinks with colleagues are still work events. Any negative personal comments or inappropriate discussions made via Zoom, WebEx, Teams and the like may well still be viewed as cyberbullying even if they are made from the comfort of the employee’s own living room.
In a pre-lockdown world, it was often clear when a team meeting was taking place. Colleagues gathering into a breakout room or around a supervisor’s desk generally indicated that a team meeting had been called to discuss progress and share information. In the new remote world, it is easier for perpetrators to leave colleagues off calendar invites to team meetings and thus deny them access to information that they may need to complete their job properly or the opportunity to report on their own progress. Would this be considered cyberbullying? Probably not if a one-off mistake but it may well point towards a bigger picture.
COVID-19 has also exposed the micro-managers in organisations. The case of Mrs S Soloman v. Hertfordshire & Paul Hammond suggested that micromanaging could amount to victimisation, so it is not beyond the realms of possibilities that when carried out remotely, micro-managing could constitute cyberbullying.
What can employers do to combat and deal with cyberbullying?
- Update policies and procedures – businesses should have a clear policy setting out what constitutes cyberbullying, how it can be reported and how it will be dealt with. For the avoidance of doubt, cyberbullying is a disciplinary offence and should be treated in the same way as a verbal bullying, harassment or victimisation case would be.
- A ban on access to social media sites from work devices or for anything other than work-related purposes will limit exposure. Employment Tribunals have shown that where the offense is committed on a workplace device they are willing to hold the employer liable.
- Analyse reporting procedures – encourage victims of cyberbullying to report the matter promptly so that evidence can be retrieved. Introduce anti-bullying champions or welfare officers to deal with the human side of the issue.
- Educate supervisors and managers – make senior leaders aware of online etiquette and encourage them to set ground rules within their team, such as avoiding unscheduled ad-hoc update calls or pulling members of the team into client updates at the last minute.
- Monitor communications – subject to terms of contracts of employment and company policies, employers may wish to consider monitoring online communications between employees. Please note, though, that this should not be done unless the employee has been informed such monitoring will take place and should not, in any event, be excessive.
- Report to the police – where there is evidence of a death threat or threat of violence made between employees, the matter should be referred to the police. Cyberbullying can also be a good indicator of stalking or harassment and employers should refer any incidents of this nature across to law enforcement officials.
This article was written by Michael Briggs (Partner) and Rory Stone of law firm Shoosmiths.
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