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Cyber bullying of teachers – a growing problem for schools?
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There has been a great deal of press coverage over recent weeks about the problems associated with the growth of social networking websites and increasing technological sophistication amongst children. One prominent issue is ‘cyber bullying’: the use of text messages, emails and websites to hurt, upset or embarrass another person.

The focus has been on the dangers faced by school pupils from cyber bullying. One 15 year old girl, Megan Gillan, committed suicide after being bullied through the social networking site Bebo. However, a survey carried out in April by the Association of Teachers and Lecturers and the Teacher Support Network suggests that teachers are also increasingly at risk of being the victims of cyber bullies. It found that one in seven teachers have been cyber bullied and of those, 68% had received unpleasant emails, 26% had been the subject of abuse on websites and 28% had received abusive text messages.

The problem is compounded by teachers’ relative lack of technological sophistication compared to their pupils, the difficulty in identifying the perpetrators and the range of methods which have been used to cyber bully teachers. Obvious methods include setting up ‘hate groups’ on Facebook or MySpace, posting negative reviews on the bête noire of many teachers: Rate My Teacher, or sending abusive text messages. But there are other equally damaging methods such as hacking into a teacher’s email account, sending viruses or using the school’s own Virtual Learning Environments (VLEs) to disrupt or delete a teacher’s work.

The survey highlighted the effects of cyber bullying upon teachers with 39% saying they suffered a blow to their confidence, 25% saying they felt the standard of their teaching was affected and 6% reporting that they were signed off work with stress or other related illness. Such statistics will be especially worrying to school leaders because they indicate a heightened risk of employment claims from teachers whose professional lives and health have been damaged as a result of cyber bullying.
Teachers who are minded to bring a claim cannot make a complaint to an employment tribunal for cyber bullying alone. They would need to link the abuse they suffered to the existing discrimination legislation or to show that the school has failed in the duty of care owed to its employees. This can be difficult, as demonstrated the case of Campbell v Falkirk Council in which a teacher unsuccessfully argued that he fell within the ambit of the Disability Discrimination Act 1995 because he had been bullied by pupils on account of his baldness. Despite this, where cyber bullying takes the form of racist, sexist or homophobic abuse, schools should be particularly vigilant towards the risk of a discrimination claim.

There is a currently a legal hurdle for teachers who wish to bring claims under the discrimination legislation. Whilst a school will have liability for the acts of staff members who cyber bully other teachers in the course of their employment, as the law stands it will not have liability for discriminatory acts such as racist or homophobic abuse carried out by pupils. The 2003 House of Lords case of Pearce v Governing Body of Mayfield School involved a teacher who was harassed and bullied by pupils because she was a lesbian. The court found that the school was not liable for failing to act where a third party, such as a pupil, discriminates against or harasses its employees, unless the reason why the school failed to act was itself discriminatory. However, the law is changing and the forthcoming Equality Bill will make employers explicitly liable, in some circumstances, for harassment by third parties in the workplace.

Where a school fails to take steps to address cyber bullying, a teacher who falls victim to cyber bullies may consider that the school has broken the duty of trust and confidence which it owes to all employees and may decide to resign and claim constructive dismissal. If the school is aware that the teacher has been cyber bullied by pupils, it could be liable if it was in a position to prevent the cyber bullying from occurring but did not take steps to do so. Employers also have an implied duty to provide a suitable working environment and if, for example, a school should fail to prevent pupils from filming teachers in class with mobile phones, it could be in breach of this duty, enabling the teacher to resign and claim constructive dismissal. To avoid the risk of a constructive dismissal claim, school leaders should take reports of cyber bullying seriously and implement school policies to ensure all wrongdoing is dealt with thoroughly and consistently.

Teachers also may consider taking action under the law of defamation if a pupil makes a libellous allegation on a website, although this can be difficult where comments are made anonymously or using a pseudonym. In order to succeed in such a claim, the teacher must show that the allegation was defamatory: that it lowers the individual in the estimation of right-thinking members of society generally by exposing the victim to hatred, contempt or ridicule. Insults or offensive rants such as “Mrs Jones is fat and ugly” will generally not be defamatory, but a statement that “Mr Smith is a pervert” is likely to fall within the definition. School leaders should assist the teacher with informing the website that they are hosting defamatory content. This will put the website at risk of liability for claims and should increase the speed with which such statements are removed.

Where a teacher finds themselves the victim of cyber bullying, rather than heading straight for the courts, they will generally turn in the first instance to the school for assistance. It is crucial at this point that school leaders respond appropriately to avoid the risk of future claims arising from the school’s failure to adequately address the problem.

So how should the school respond? Firstly, the teacher concerned should be encouraged to keep any evidence of cyber bullying by saving text messages, printing out emails and using the ‘print screen’ function to keep a permanent record of website content. Such evidence will form the basis of any disciplinary action or referral to the police. Should the school decide to take disciplinary action against pupils who are responsible for cyber bullying it should do so in accordance with the school disciplinary policy. If the problem persists, pupil exclusion should not be ruled out.

Where a school is faced with a cyber bullying incident which is so serious as to potentially constitute a criminal offence such as stalking, harassment, illegal content or threats of a physical or sexual nature, the school should inform the police and seek their involvement in identifying the perpetrators. It can be difficult to take meaningful action to prevent cyber bullying from reoccurring without police involvement. Phone companies and internet service providers may not be willing to disclose the identity of someone sending anonymous messages without a request from the police under the Regulation of Investigatory Powers Act 2000.

As prevention is generally better than cure, school leaders must ensure that they have appropriate measures in place to guard against cyber bullying. Effective policies and reporting procedures and proper training of staff are particularly important. All schools should have an anti-bullying policy which covers teachers as well as pupils, and which includes specific information on cyber bulling. Any anti-bullying policy should set out clear disciplinary sanctions for cyber bullying and specify the member of staff to whom incidents of cyber bullying should be reported.  A member of the senior management team should be designated to deal with cyber bulling issues and should receive training in new technologies, the possible dangers and how to deal with them.

Most schools have an existing Information and Communication Technology (ICT) policy, but school leaders should review these to ensure that they contain clear acceptable use guidelines with specified consequences for non-compliance or abuse. It is sensible to monitor pupils’ use of the internet and school email systems but in order to do so schools must have pupils’ consent to avoid falling foul of the Data Protection Act 1998. It is also prudent to obtain pupils’ consent in the policy to permit a senior member of staff to search the contents of their mobile phone if they reasonably suspect it has been used for bullying. The Education and Inspections Act 2006 grants school staff the right to confiscate a mobile phone which is causing a disturbance in class or which contravenes behavioural or anti-bullying policies, but they may not search the phone without the pupil’s consent. A pupil who has been using their phone to film a teacher in class is most unlikely to give such consent, and it is therefore important to obtain it in advance by ensuring pupils sign up to school policies.

It is an unfortunate truth that watertight policies and vigilant monitoring of IT systems will not completely prevent cyber bullying from occurring. Legal action is usually a last resort but teachers who have been the victims of cyber bullying will often approach their union for advice on the legal options available to them under existing employment legislation. If school leaders have a working knowledge of the possible claims which could be brought against the school they can take steps to limit their liability where incidents of cyber bullying do occur.

Catrin Llewellyn is a Solicitor at leading City law firm Reynolds Porter Chamberlain LLP.  Contact: catrin.llewellyn@ rpc.co.uk