As Britons spend an increasing amount of time on social media sites – an estimated 62 million hours on Facebook and Twitter each day – employers are faced with the growing problem of "cyber-bullying" in the workplace. Individuals who harass or bully others via the internet have always faced the prospect of prosecution (as well as disciplinary action) however the distinction between which cases would be prosecuted by the CPS and those which would not, has, up until now, been uncertain.
The final guidelines for prosecutors on the approach that they should take in cases of this kind have now been published, resulting in far more clarity on the issue.
The Director of Public Prosecutions, and the author of the guidelines, Keir Starmer QC, was keen to stress that the threshold for prosecution will be high. Distasteful or offensive communications which do not amount to a credible threat of violence, a targeted campaign of harassment or the breach of a court order, are unlikely to be pursued.
The focus of investigations will instead be on messages which target specific individuals, particularly those which are racially or religiously aggravated, or are concerned with a person’s sexual orientation, transgender identity or disability, all "protected characteristics" under the Equality Act 2010.
There is a very real problem of people posting discriminatory comments on their public Facebook pages regarding colleagues or employees and engaging in online bullying and harassment. Don’t forget that an employer can be vicariously liable for the acts of its employees during the course of their employment.
An employer will only escape liability if it can show that it took all reasonably practicable steps to prevent the harassment occurring. A key step in this regard is for employers to prepare an Acceptable Use policy to manage internet, social media and email use in the workplace. If there is such a policy and it is brought to the employees’ attention then it will be easier to take disciplinary action as the policy is likely to state that employees should not do anything to bring the organisation into disrepute or to bully and harass their colleagues online.