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Workplace bullying is a serious issue, and allegations of bullying can have consequences for employers and employees alike.
The term bullying is often used interchangeably with harassment. However, the Equality Act 2010 gives harassment a very specific meaning and it is important that employers are aware of the difference. The act defines harassment as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.
Bullying is not specifically defined in UK law, but Acas – the Government’s employment advisory service – states bullying “may be characterised as: offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”.
Harassment related to a protected characteristic under the act (someone’s age, disability, gender reassignment, sex, pregnancy and maternity, race, religion or belief, marriage or civil partnership, or sexual orientation) is unlawful. Harassment that is entirely unrelated to a protected characteristic isn’t covered by the act, but is still something an employer will want to be concerned about.
Individuals are protected from harassment throughout their working relationship; for instance, when applying for a job, during their employment, and in some circumstances after the working relationship has ended (say, in connection with a reference).
Consequences for employers
Employers can be liable for harassment between individual employees. They can also be liable for harassment that employees have faced from a third party where it occurs in a work context or at a work-related event. Employers can be liable for the actions of those working for them if they harass others, and the consequences of this are costly both in terms of expense and reputation.
In the context of a workplace discrimination claim, Employment Tribunals can make uncapped compensation orders (including for injury to feelings); they can also make recommendations to employers to counter the adverse effect on the claimant – an unreasonable failure by the employer to comply with this can result in increased compensation.
Another point of concern for employers is that since February 2017 Employment Tribunal decisions have been published on gov.uk – so, dealing with a harassment claim can, therefore, damage an organisation’s reputation.
Dealing with complaints
If a complaint is made, it should be dealt with promptly. Initially, this may be resolved informally. However, it is important employers have formal procedures in place to enable an appropriate person to take disciplinary steps where needed.
The policy should cover all types of grievances and disciplinary issues, including bullying and harassment. It is also important to provide workers with alternative points of contact in case the named contact is the alleged harasser.
Employers can use an independent third party to help resolve workplace conflict; this might take the form of mediation. But this won’t always be appropriate – particularly where the parties are unwilling to engage, or the harassment is very serious.
Should the informal option fail, or the situation is considered too serious for the informal route, then the employer will need to trigger its formal procedure. This should include an investigation, which must be commenced in good time after the complaint is raised. It must provide all parties with timescales as to when the process will complete.
It is also very important the investigation is impartial; this means employers should consider any conflicts of interest before assigning investigation roles. Investigators should ensure they take evidence from witnesses, listen to both the alleged harasser and the complainant’s version of events and ensure confidentiality.
It is key that employers make a record of complaints and investigations. These should be sufficiently detailed and include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. These records should be made as soon as possible following the receipt of the complaint.
If a complaint is upheld, it might be appropriate to relocate or transfer one of the individuals involved. At the same time, it is sensible to seek legal advice if employers wish to put in place a confidentiality or non-disclosure agreement.
Steps employers can take to prevent workplace bullying
Employers should have a clear and thorough policy that states their commitment to promoting dignity and respect at work. Employers should be aware their responsibilities also extend to work-related activities, such as parties or external events, remembering that they could be liable for what happens at these occasions unless they took reasonable steps to prevent trouble arising.
Following the rise of hybrid working, the line between work and home has become increasingly blurred. Employers should, therefore, be aware of the risks of “cyber bullying”. A picture uploaded to an external website, for instance, of a colleague could amount to bullying for which the employer could be vicariously liable.
Employers should be clear there is zero tolerance for any type of inappropriate, aggressive or intimidating behaviour. During the induction process, employees should be told about the organisation’s expectations. Employees should undergo onboarding training on the relevant policies, and be provided with information concerning their rights and personal responsibilities.
As to its contents, in overview, it should stress that each employee is responsible for their behaviour, while giving practical examples of what constitutes harassment and bullying to set expectations. The policy should clarify that harassment and bullying will not be tolerated, and make clear that allegations of harassment and bullying may be dealt with under the disciplinary policy, and could potentially amount to gross misconduct.
The policy should clarify the legal implications of bullying and harassment – which might include consequences for the individual. It should also describe how, if someone is feeling bullied or harassed, they can get help and make a complaint, whether formally and/or informally, and what the relevant process is.
Finally, the policy needs to clarify the accountability of all managers, and require managers to implement the policy and ensure it is understood by all employees and workers.
Workplace bullying and harassment can have significant consequences – both for employees and their employer, which may find itself defending a claim that it did not do enough to stop the bullying behaviour from taking place.