Workplace bullying is a serious issue and allegations of bullying can have serious consequences for employers and employees alike. The problem is widespread according to various surveys, and employers that choose to ignore the matter may find themselves appearing before an employment tribunal.
The term bullying is often used interchangeably with harassment. However, the Equality Act 2010 gives harassment a very specific meaning: ‘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.’
According to Mark Stevens, a senior associate at law firm VWV LLP, bullying is not specifically defined in UK law. He says, however, that ‘Acas, the government’s arbitration service terms it as meaning: “Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate, or injure the recipient’’.’
He adds that harassment related to a protected characteristic under the Act (age, disability, gender reassignment, sex, pregnancy and maternity, race, religion or belief, marriage or civil partnership, or sexual orientation) is unlawful.
‘Interestingly,’ he says, ‘harassment that is entirely unrelated to a protected characteristic isn’t covered by the Act, but is still something an employer ought to be concerned about.’ He also explains that ‘individuals are protected from harassment throughout their working relationship and beyond.’
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.
Stevens adds: ‘Employers can also 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.’
It is a fact that for 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 and failure by the employer to comply with this can result in increased compensation.
Another point of concern for employers should be that employment tribunal decisions are published on gov.uk; dealing with a harassment claim can therefore damage an organisation’s reputation (see panel below).
Dealing with complaints
If a complaint is made, Stevens says: ‘It should be dealt with promptly. It may be that, initially, it can be resolved informally. Either way, it is important that employers have formal procedures in place.’
Good practice suggests a 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.
One suggestion from Stevens is for employers to ‘use an independent third party to help resolve workplace conflict; this might take the form of mediation. This won’t always be appropriate though.’
But should the informal option fail, or the situation is considered too serious for the informal route, then Stevens says that the employer will need to trigger its formal procedure.
He says: ‘Investigations must be commenced in good time after the complaint is raised. It is 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 good practice for employers to 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.
If a complaint is upheld, Stevens thinks that relocating or transferring one of the individuals involved might be an appropriate measure if it is practical. At the same time, he says: ‘It is sensible to seek legal advice if employers wish to put in place a confidentiality or non-disclosure agreement.’
Steps employers can take
Looking to avoid trouble in the first place. Stevens thinks employers should ‘have a clear and thorough policy that states their commitment to promoting dignity and respect at work. They should be aware that 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.’
The problem for some is the rise of hybrid working where the line between work and home has become increasingly blurred. Employers need to 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.
For Stevens, this means: ‘Employers should make it clear there is zero tolerance for any type of inappropriate, aggressive or intimidating behaviour. So, during the induction process employees should be told about the organisation’s expectations and undergo onboarding training on the relevant policies and be provided with information concerning their rights and personal responsibilities.’
As to the policy’s contents, Stevens thinks it should stress that each employee is responsible for their behaviour while giving practical examples of what constitutes harassment and bullying to set expectations. He adds: ‘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.’
It should also clarify the legal implications of bullying and harassment, which might include consequences for the individual. Also, Stevens notes that if someone is feeling bullied or harassed, they can get help and make a complaint, whether formally or informally.
Stevens’ parting words are aimed at managers. He says: ‘They need to understand their accountability and implement policy, ensuring that it is understood by all.’
In summary
Workplace bullying and harassment can have significant consequences, both for employees and employers who may find themselves defending a claim that they did not do enough to stop it from taking place.