The Evolving Landscape of Digital Misconduct

Workplace cyberbullying is fundamentally defined as the intentional and repeated use of electronic communication to harm or harass others. While sharing commonalities with traditional bullying, its digital nature introduces unique complexities. Key characteristics include:

• Persistent unwanted acts that originate from the work environment but are carried out through digital technology. These acts can be saved and reused by perpetrators, exacerbating the victimisation.
• Accessibility via any device or digital platform, meaning it's not confined to specific work machines or locations.
• Anonymity of perpetrators, which can create a sense of invisibility and fearlessness, encouraging aggressive language and the sharing of private information without immediate repercussions.
• Non-border intrusion, allowing cyberbullying to extend beyond the physical workplace and intrude upon an individual's private life, undermining their sense of safety even at home.

Examples of digital misconduct and cyberbullying behaviours are diverse and often subtle, making them difficult to detect. They can include:

• Spreading malicious rumours or gossip.
• Threatening emails or intimidating text messages.
• Public humiliation of co-workers on social media platforms.
• Impersonating a leader, supervisor, or co-worker.
• Outing secrets and personal information to large groups of employees.
• Trolling by posting negative comments on social media posts.
• Exclusion from key chat threads or online meetings.
• Using in-jokes that exclude or belittle.
• Passive-aggressive comments buried in messages.
• Excessive monitoring of work.
• Deliberately withholding information necessary for job performance.
• Assigning unreasonable workloads to cause frustration or failure.

The intention of the perpetrator is irrelevant; it is the effect of the behaviour on the employee that is determinative. Even a single incident can constitute harassment, and behaviour can be considered harassment even if not specifically directed at a particular employee.

The shift to remote and hybrid work has significantly exacerbated workplace bullying, leading to a rise in "out of sight" bullying facilitated by "always on" technology. Virtual workspaces are just as susceptible to bullying as physical ones. Challenges in this fragmented digital landscape include:

• Misinterpreted digital communication due to the absence of non-verbal cues (body language, facial expressions), which can lead to irrational reactions and anxiety being deflected onto others.
• The illusion of privacy in private chats during video calls and online meetings, which can become toxic.
• The ease of disconnection or tuning someone out with a click, leading to social rejection being experienced as physical pain.
• The lack of direct confrontation and spaces for face-to-face arguments to resolve disagreements, which were common in traditional workplaces.
• The absence of witnesses when working from home, removing a deterrent present in traditional office settings.
• Blurred boundaries between work and home, allowing digital bullying to infiltrate an employee's personal sanctuary, making it difficult to escape.
• Outdated policies that often haven't kept pace with digital misconduct, failing to address what bullying looks like in modern communication tools or how to handle digital exclusion.

The concept of "digital watercoolers" – collaboration tools like Slack, Microsoft Teams, and internal chat channels – has transformed into "toxic playgrounds" where inappropriate behaviour, exclusion, and bullying can escalate. What might seem like "harmless banter" can quickly devolve into gossip, mockery, or exclusion, leaving a permanent digital trail and eroding trust, confidence, and psychological safety. This rise in digital misconduct is often driven by a lack of emotional intelligence, where individuals misread tone and fail to understand the impact of their messages without the benefit of face-to-face nuance.

Employer Obligations and Legal Framework in Ireland

Irish law imposes a significant responsibility on employers to ensure a safe and healthy workplace, a duty that clearly extends to preventing bullying, including its digital manifestations.
The Safety, Health and Welfare at Work Act 2005 obligates employers to manage and conduct work activities to prevent "improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk". This applies to all employments in Ireland, irrespective of whether employees work at a fixed location, at home, or are mobile.
The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (2020), jointly prepared by the Health and Safety Authority (HSA) and the Workplace Relations Commission (WRC), offers practical guidance on identifying, preventing, addressing, and resolving workplace bullying. This Code specifies that bullying behaviours can be "delivered through cyber means" and are covered by the 2005 Act.

It is crucial to distinguish between "bullying" (which relates to any unwanted conduct) and "harassment" under the Employment Equality Acts 1998-2015 (which specifically relates to unwanted conduct based on discriminatory grounds like gender, age, race, disability, etc.). However, employers are advised and often have a single policy document that covers procedures for both. The Irish Human Rights and Equality Commission (IHREC) has also published a "Code of Practice on Sexual Harassment and Harassment at Work (2022)" that provides guidance for harassment under the Employment Equality Acts, explicitly including written harassment via text messages, emails, social media, or internet posts.

Employers are legally responsible for harassment suffered by employees, including that perpetrated by co-employees, clients, customers, or other business contacts, unless they took reasonably practicable steps to prevent it and its recurrence. This duty extends beyond the physical workplace to work-related social events and social media sites.

A notable case, Irene Glynn v Carlow Dental Centre, serves as a significant reference point for employers regarding online conduct. In this Workplace Relations Commission (WRC) case, an employee was dismissed over controversial remarks posted on her private social media account. However, the WRC found in favour of the employee due to the employer's failure to have adequate protocols and procedures in place, highlighting the fundamental flaw in the disciplinary process. This case underscores that while employers have a right to take disciplinary action even for posts on private social media accounts where they impact the workplace, the key criterion is whether the individual had a 'reasonable expectation of privacy'. Irish employment law has evolved to address social media use, focusing on whether behaviour was prohibited, if requirements were sufficiently communicated, and if due process and natural justice were afforded to the employee.

Addressing Digital Misconduct: Key Employer Responsibilities

To mitigate the risks of digital misconduct and effectively manage liability, employers must adopt a proactive and comprehensive approach:

Develop and Implement Comprehensive Policies: Employers must have a solid anti-bullying and anti-harassment policy. This policy should clearly define bullying and harassment, provide specific examples relevant to digital communication (e.g., Teams chat, digital exclusion), outline clear reporting mechanisms, and state that disciplinary action may follow. It should be communicated effectively to all employees and reviewed regularly.

Provide Training and Awareness: Employees, especially managers, require training to recognise the signs of bullying, understand its impact, and feel confident in handling complaints. This training should specifically address the nuances of digital communication, such as tone misinterpretation and the permanence of digital messages. It is crucial that leaders model respectful digital behaviour and hold themselves to high standards.

Establish Clear Reporting Mechanisms: There must be an easy, accessible, and confidential way for employees to report bullying. A system that makes employees feel safe, possibly involving a third-party vendor, is crucial, especially if the alleged offender holds a position of authority.

Prompt and Fair Investigation: Upon receiving a report, employers are obligated to act quickly and fairly. This involves a thorough, impartial, transparent, and well-documented investigation process. Key elements of procedural fairness include providing proper notice to all parties, furnishing all relevant disclosure in advance (including social media communications or other digital evidence), ensuring opportunities to comment on assertions, maintaining confidentiality, and preventing assumptions about culpability. The investigator's role is fact-finding, determining if behaviours occurred on the balance of probabilities.

Offer Support to Affected Individuals: Recognising the significant impact of bullying on mental health, providing support such as an Employee Assistance Program (EAP) or regular check-ins is vital.

Monitor and Maintain a Positive Digital Culture: Regular check-ins with staff, surveys, and adapting practices are crucial to catch issues before they escalate. It's essential to foster a positive workplace culture where employees feel comfortable raising concerns, moving beyond mere compliance to genuine cultural integration. Employers must understand how their communication tools are being used and ensure systems support inclusion rather than fuelling harm. While the sources note that employers can review transcripts and videos of recorded meetings if issues arise (depending on service contracts), this must be balanced with employees' reasonable expectation of privacy and adhering to data protection legislation, as highlighted by the Irene Glynn case.

Consequences of Workplace Cyberbullying

The effects of digital misconduct are far-reaching and detrimental to both individuals and organisations:

For Individuals: It can lead to severe mental health issues such as stress, anxiety, psychological distress, depression, and insomnia. Employees may experience decreased engagement, motivation, job satisfaction, reduced job performance, and increased absenteeism. A significant 77% of respondents in one survey reported having left or considered leaving a job due to discrimination.

For Organisations: Cyberbullying can result in dysfunctional work environments, low morale, lost productivity, and increased operational costs. It can severely damage a company's reputation, making it difficult to attract and retain top talent. Furthermore, organisations face potential lawsuits from victimised employees and compromised efficacy and integrity of their information systems.


Reporting and Resolution in Ireland

In Ireland, a structured approach is in place for addressing bullying complaints:

Internal Procedures: Complaints should first be addressed internally, through either an informal or formal process. The informal process encourages early resolution through direct communication or mediation. If informal resolution fails or the issue is severe, a formal process involving a written complaint and thorough investigation is invoked.

Workplace Relations Commission (WRC): If internal procedures do not resolve a bullying complaint, the matter can be referred to a WRC Adjudicator under Section 13 of the Industrial Relations Act 1969. The WRC also offers mediation services as an early dispute resolution mechanism. Decisions of the WRC can be enforced by the District Court if not carried out.

Health and Safety Authority (HSA): The HSA operates a Workplace Contact Unit (WCU) where employees can report issues or seek information. The HSA assesses whether the employer's duty of care (under the Safety, Health and Welfare at Work Act 2005) was. The HSA can issue enforcement actions, ranging from verbal advice to improvement notices, if an employer fails to act reasonably. It is important to note that the HSA does not have a role in sanctioning or disciplinary actions or in mediation between parties in a bullying case.

The increasing recognition of workplace cyberbullying as a research topic globally, particularly from 2016 to 2024, underscores the ongoing challenge it presents in the digital age. While much of the research originates from developed countries, there remains a significant gap in understanding its manifestation and prevention in regions like Africa, highlighting the need for culturally sensitive interventions and updated policies worldwide.

Conclusion

In the digitally fragmented workforce, employers face complex legal and operational challenges in addressing digital misconduct. The integration of technology into every facet of work means that online workspaces are now real workspaces, and they must be treated as such. Proactive measures - comprehensive and up-to-date policies, consistent training, clear reporting channels, and a commitment to fostering a positive digital culture - are not merely best practices but legal imperatives. The pervasive nature and severe consequences of digital misconduct demand that employers move beyond reactive responses to cultivate psychologically safe and inclusive digital environments, ensuring that their legal obligations are met and their most valuable assets - their employees - can thrive.