With recent widely reported resignations resulting from allegations of bullying behaviours, both harassment and bullying is an increasingly common issue faced by employers.
This article sets out information for employers on the issues surrounding bullying and harassment in the workplace, what they should do and what potential liabilities they could be responsible for.
- What is workplace harassment & bullying?
- Social media harassment
- Harassment guidelines could become law
- What is the difference between bullying and harassment?
- Common types of bullying and harassment
- What can employers do to prevent bullying and harassment?
- How to spot bullying and harassment
- What should employers do when there is a report of bullying or harassment?
- What can employers do to support staff?
- Claims for workplace bullying and harassment
Harassment is when behaviour from a person or group of people is unwanted behaviour makes you feel uncomfortable, intimidated, degraded, humiliated or offended.
Bullying has no legal definition with ACAS characterising bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse if power through means that undermine, humiliate, denigrate or injure the recipient”.
These behaviours can have a negative effect on employees often resulting in increased absence from sickness, anxiety/depression, low motivation and reduced productivity in the workplace.
Bullying and harassment is not just face to face, it can also happen by letter, email, phone or even via social media.
With the ever-increasing speed of technological changes, there are implications for what is classed as bullying and harassment. The Equality and Human Rights commission has issued new guidance on workplace harassment, warning that comments posted on social media could be classed as harassment. This adds a whole new dimension to the obligations that are faced by employers in this complex area of law.
There are plans for the guidelines to become statutory measures enforceable by law. Therefore it’s important for employers to be aware of what bullying and harassment is, their duties and responsibilities to their employees, as well as potential risks.
Bullying and harassment are similar in terms of the behaviours exhibited and how they make the victim feel.
To be protected under the Equality Act 2010 the conduct must be unwanted, have the purpose or effect of violating that individual’s dignity and be related to one of the protected characteristics, which are:
- sexual orientation
- religion or belief
- gender reassignment
- pregnancy and maternity.
Harassment where it is not related to a protected characteristic, could also be protected under the Protection from Harassment Act 1997 and civil claims can be brought by those affected.
Bullying and harassment behaviours in the workplace can include:
- unwanted physical contact
- workplace ‘banter’
- unwanted shouting
- unwanted remarks
- freezing employees out and ignoring their contribution
- denying someone training or promotion opportunities
- spreading rumours
- misuse of power or position
- overbearing supervision
- withholding information which can affect someone’s performance
- persistent criticism or undermining someone.
Employers should develop and circulate policies dealing with bullying and harassment, including what standards of behaviour are expected, what working relationships should look like and how to professionally manage these and deal with any conflicts.
Where employers can show that they took “all reasonable steps” to prevent employees behaving in such a manner, then they will not be liable for acts of discrimination. However simply having a policy is unlikely to be sufficient. Taking reasonable steps might mean having well-publicised policies but also undertaking effective and regular training of staff on the issue.
Staff should therefore be given training on how to act consistently and apply the bullying and harassment policy, to ensure they are familiar with the processes and how to follow them. Employees should be encouraged to feel that they can talk to someone in authority, for example, their line manager or someone in HR, and they will be listened to and have their concerns taken seriously; also that they will not be censured for speaking out.
Training could also be given on the impact and damage that certain behaviours can have on those affected. Managers in particular must be trained about their responsibility to identify and prevent such behaviour.
Staff can suffer in silence – feeling too anxious to tell someone about it for fear of not being believed, not being taken seriously or it getting worse as a result of speaking out. Good practice for employers includes being aware that it might be happening even if the person doesn’t report it. Things to look out for include:
- increased absences from work
- people disappearing from their desks, to get away -for example, go to the bathroom for long periods
- declining standards of work, especially if that is not typical
- people asking to move their desk or other location in which they work
- unexpected outbursts indicating stress
- colleagues avoiding or ignoring each other
According to a report published by the Chartered Institute of Personnel and Development, a quarter of employees think their company turns a blind eye to workplace bullying and harassment; so it is vital that employers react promptly and appropriately to complaints raised.
Where there is a complaint made, ensure that there is an effective resolution procedure so that the organisation can act promptly and conduct a thorough investigation, acting in a fair, confidential and sensitive manner. This will usually be set out in the anti-bullying and harassment policy or via a grievance process.
Where a complaint of bullying and harassment is well founded, employers will need to consider what steps to take against those who have carried out the conduct. These would usually be to consider appropriate disciplinary action under the employer’s disciplinary procedures, after an investigation has been carried out. Remember to always act with consistency.
There are many ways in which employers can support affected staff, for example offer counselling to those who have made a complaint. Some employers may also offer the benefit of an external employee assistance scheme and employees should be made aware and directed to this.
If bullying and harassment leads to sickness, this will need to be managed appropriately, with support given in their return to work. It may be that the employer should consider, alongside a medical evidence or occupational health report, a phased return to work, adjustments to workload, or the possibility of a change of job or reporting lines.
Bullying and harassment can lead to liability for employers as it is possible to pursue the employer for claims which relate to workplace bullying and harassment. This is because employers are normally liable for acts of their staff, whether or not they have condoned or dealt with the behaviour.
Where the treatment is related to a protected characteristic (see above) employees can pursue claims based on discrimination under the Equality Act 2010, where compensation for acts of discrimination is uncapped. If a complaint of discrimination is upheld then it is likely a Tribunal would make an award of ‘injury to feelings’ of the recipient as well as any other financial losses that follow from the acts of discrimination.
Employees may also seek to bring a claim of constructive unfair dismissal where they may attempt to show that the employer was in breach of their contract of employment and that they resigned in response to that breach. Commonly this is on the basis that a term implied into all employment contracts, dealing with mutual trust and confidence, has been irretrievably broken. This claim is limited to employees who have been employed for two years or more. If successful, the recipient is likely to be awarded a basic award (taking account of their age, length of service and pay) and a compensatory award, which reflects the financial losses incurred (e.g. loss of earnings).
Civil claims are also possible where harassment is not related to a protected characteristic and can be brought under the Protection from Harassment Act 1997.
Tees is here to help
We have many specialist lawyers who are based in:
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop's Stortford and Royston
But we can help you wherever you are in England and Wales.
Chat to the Author, Gez Gibbs
Associate - Dispute resolution & litigation, Brentwood officeMeet Gez