Cyberbullying: What Should Employers Be Doing About It?
With the rise in use of social media, employers are faced with increasing numbers of employees who make derogatory comments about colleagues or the business on social media, such as Facebook, outside of working hours. According to ACAS, around one in six people experience cyberbullying from colleagues on a weekly basis - a similar number to those who experience more traditional forms of bullying in the workplace. However, employers often find it difficult to know what steps they can and should take.
From the few cases which have been decided, the underlying notion is that employers with a clear social media policy will be in a much better position to take action should an incident occur than one without.
It is clear that employers cannot overlook an employee’s behavior just because the incident happened outside of the workplace and working hours. An employer is vicariously liable for all of its employees and as such Tribunals generally take a wide view when considering what may be classed as ‘in the course of employment’. For example, the office Christmas party and after work drinks have been included by Tribunals in the past. As such, derogatory comments on social media, which are intrinsically linked to employment should still be treated as misconduct.
Failing to take action against incidents of cyberbullying can put the employer at risk. Employees suffering from cyberbullying could potentially bring claims for harassment or discrimination, breach of statutory health and safety rules, and even personal injury claims for any psychological damage caused. If an employer cannot show that they took steps to prevent the bullying, they will remain liable. Not only this, but failing to address the issue can often result in a volatile and unpleasant workplace environment which is not conducive to running an effective business.
Whether or not disciplinary action can be taken against an alleged bully will depend on a number of factors and the circumstances in which the action occurred. This will include the nature of the comments posted, the relationship between the alleged bully and victim, both the employment relationship and that on social media, and whether the action is performed in the course of employment.
Every complaint should be thoroughly investigated. If the comments made are in breach of your policies then disciplinary proceedings should be commenced in the same way that they would be for any other form of misconduct - ensuring that the employee is treated in the same way as other employees in these circumstances have been treated.
Until further guidance is published on the issue of cyberbullying, it is crucial for employers to ensure that they have a thorough social media policy clearly detailing the approach that the employer will take when dealing with the misuse of social media - both inside and outside of the workplace. The employer must show integrity in handling misconduct in relation to social media, in the same way that any other form of misconduct would be treated.