The recent lurid allegations about bullying by the Prime Minister have given rise to many adverse headlines (despite the PM’s denials) and serve as a stark reminder to all employers as to the potential harm to hard earned reputations or brand images which claims for bullying and harassment can cause. This article sets out the main forms and grounds of harassment and bullying at work; outlines how harassment and bullying affect people and employers; examines the legal implications if employers allow such behavior; and gives guidance on the development of appropriate policies.
What are harassment and bullying?
Acas give the following definitions:-“Harassment is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, sexual orientation, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient.””Bullying is offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.”The legal definition of harassment also requires the behaviour to have “the purpose or effect of violating people’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.”
The legal position
Discrimination law prohibits harassment on a variety of grounds including age, disability, colour, ethnic or national origin, race, religious belief or other similar philosophical belief, sex and sexuality. It also protects individuals from discrimination both while applying for a job, during it and, in some cases, after the working relationship ends (for example in the provision of a reference). Because there is no single piece of legislation dealing with work place bullying, the legal position is more complex. If bullying occurs at work for a non-discriminatory reason there may still be legal protection. However, many different legal concepts may be involved, for example:
Third party harassment
Employers may be liable in discrimination claims if they fail unreasonably to protect employees from third party harassment, such as by clients or customers. The employer is only liable if aware that the employee has been subject to such harassment by a third party in their employment on at least two other occasions. It is immaterial whether the third party is the same or a different person on each occasion.
What constitutes harassment and bullying?
Bullying or harassment may be by an individual or groups. It may be obvious or it may be insidious. Harassment and bullying can range from extremes such as physical violence to less obvious forms like ignoring someone. It can be delivered in a variety of ways and be persistent or a one-off act and can include:
Tackling the issue is a joint responsibility of employer and employees as employers and individuals can be ordered to pay unlimited compensation where discrimination-based harassment has occurred, including the payment of compensation for injury to feelings.
What actions are needed to tackle harassment?
Policies, communication and trainingA well-designed policy, agreed with union or employee representatives, is essential. Policies should:
Policies should be communicated so that all employees:
The policy should be monitored and regularly reviewed for effectiveness, including:
(Any policy should interlink with the organisation’s grievance and disciplinary policy which may be needed to deal with incidents which arise.) Advice and counselling All employees should have access to confidential advice and counselling either via an employee helpline or a nominated person. This can help complainants decide what course of action to take by exploring their options. The decision to progress a complaint should rest with the individual.Mediation is an increasingly useful tool in managing conflict at work particularly where the matter concerns one individual’s word against another’s. Mediators can be external or internal. Guidance and counselling can be offered to people whose behaviour is unacceptable, as well as those affected by being harassed. Sometimes people are unaware of, or insensitive to, the impact of their actions and counselling can help them to change behaviour or prevent further incidents. Being clear as to what is and what is not acceptable behaviour will prevent ambiguity and help stop harassment. Informal proceduresSome complaints may be dealt with internally and informally. In some minor cases it may be sufficient for the victim to raise the problem with the perpetrator, pointing out the unacceptable behaviour. However, if an employee finds this difficult or embarrassing, procedures should enable support from a colleague, an appropriate manager or a HR representative. A choice of contact should be available in case the person’s manager is the harasser. Formal procedures Formal procedures are needed if the harassment is serious, if it is the individual’s preference or where an informal approach has failed. Employers should have a clear formal policy to deal with all types of grievances and disciplinary issues including bullying and harassment and this should comply with the Acas code of practice on disciplinary and grievance matters. Investigation Formal allegations of harassment, bullying or intimidatory contact should be treated as a disciplinary offence. Investigation procedures should provide:
A record of complaints and investigations should always be made to include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated confidentially and meet the requirements of the data protection law. After the procedure Where a complaint is upheld it may be necessary to relocate or transfer one party. It should not automatically be the victim who is expected to move, but they should be offered the choice where practical. Where the perpetrator is transferred, no breach of contract must occur or a claim of constructive unfair dismissal could arise.Although not always necessary, if a complaint is not upheld, a voluntary transfer of one of the employees may be offered if required. These must be consensual and dealt with on a case by case basis and if no move of either party is to take place it is vital to check the harassment has stopped and there has been no victimisation or retaliation.
Employers should treat any form of harassment or bullying seriously not just because of the legal implications and potential financial liabilities but also because it can lead to under-performance at work. A workplace environment which is free from hostility enables people to contribute more effectively to the employer’s success and to achieve higher levels of job satisfaction. An employer’s public image can be badly damaged when incidents of harassment occur, particularly when they attract media attention. This can affect relationships between an employer, their current and future employees, as well as their customers. The conflict which harassment creates should not be underestimated. Employees can be subject to high levels of stress which may lead to higher staff turnover, increased sickness absence and less productive and effective teams. An employer’s goal should be to develop a culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal. If employers can achieve this, they will be doing well and lessen the risk of finding themselves pilloried in the way the PM has been recently, fairly or not.
Versions of this article appeared in Workplace Law Network and HR Magazine on 23 February 2010.