The legal perspective - UKRuth Pott discusses harassment and bullying in the workplace.
In 2006, the Department of Trade and Industry (now the Department for Business, Enterprise and Regulatory Reform) published the Fair Treatment at Work Survey following a survey of 4000 employees. The survey found that 3.8% of employees had experienced bullying or harassment at work in the previous 2 years, with women being nearly twice as likely to be bullied as men. Foreign workers and disabled workers fared worst of all with bullying rates of 5% and 10.6% respectively.
Harassment, in relation to employment law, has a legal definition, but bullying does not. Bullying is defined by ACAS as behaviour that is offensive, intimidating, malicious or insulting, or an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the individual. Harassment can include unwanted conduct affecting the dignity in the workplace. It may be related to age, sex, sexual orientation, race, disability, religion, nationality or any personal characteristic of the individual. The important issue is that the actions or comments are considered demeaning and unacceptable to the individual. However, behaviour that is considered bullying by one person may be considered firm management by another, or accepted as the “norm” or part of the workplace culture. Bullying and harassment can range from ignoring and excluding someone to extreme physical violence. It can be persistent behaviour over a period of time or a one-off incident. Such behaviour can include: spreading malicious rumours; insulting, ridiculing or demeaning someone; exclusion or victimisation; unfair treatment; overbearing supervision or other misuse of power or position; unwelcome sexual advances, such as touching, standing too close or displaying offensive materials; making threats or comments about job security without foundation; deliberately undermining a competent worker by overloading and persistent criticism; preventing individuals progressing by intentionally blocking promotion or training opportunities; or shouting at staff. Employers are responsible for taking reasonable steps to prevent such behaviour.
Bullying and harassment are unacceptable on moral grounds and may, if ignored or handled incorrectly, create serious problems for a business, as well as lead to employment tribunal or other civil claims and large awards in compensation. Bullying and harassment can also result in poor performance, low staff morale, poor employee relations, loss of respect for management, an increase in absence, higher staff turnover and damage to business reputation.
The potential legal implications of harassment in the workplace can be: unlawful discrimination on the grounds of race, sex, marital status, gender reassignment, disability, religion/belief, sexual orientation or age; or a breach of contract, ie a breach of one of the implied terms of any employment contract, such as the duty to provide a safe working environment or to maintain trust and confidence in the employer. An employer is liable for the actions of its employees unless reasonable steps have been taken to prevent bullying or harassment. Employers could also be held liable for harassment if they fail to prevent a third party, eg a customer, repeatedly harassing an employee. Action can potentially be taken against an employer after the employee has left.
Making a complaint
People being bullied or harassed often appear to overreact to something that seems relatively trivial, but this may be the “last straw” following a series of incidents. There is often fear of retribution if a complaint is made, or a belief that such behaviour is being condoned by the employer and is an acceptable part of the workplace culture. Colleagues may be reluctant to come forward as witnesses, as they too may fear the consequences and that they may be subject to bullying themselves. If a line manager is involved in bullying, it can take a lot of courage for someone to make a complaint.
It is not possible to make a direct complaint to an employment tribunal about bullying. However, victims have a much wider range of remedies available to them than ever before as much discrimination legislation now includes protection from harassment. Legislation includes the Protection from Harassment Act 1997, which includes civil and criminal harassment, and the Health and Safety at Work, etc Act 1974, which provides psychological protection as well as health and safety protection. The Management of Health and Safety at Work Regulations 1992 offer protection and redress from bullying. Employers have a “duty of care” to all their employees and it is possible for constructive dismissal claims to be made if the mutual trust and confidence between employer and employee has broken down due to bullying and harassment. Employees may be able to bring complaints under laws covering discrimination. Additionally, failure to deal with such complaints properly could lead to stress at work, which could be a health and safety issue as well as grounds for constructive dismissal.
Employer’s bullying policy
Employers should have a policy on bullying and harassment so that employees know how they can deal with a problem or complaint. A policy should include: examples of unacceptable behaviour; what the employer will do to prevent such behaviour; how an individual can raise such an issue; and what the employer will do if there are complaints of such behaviour. The employer should state that it will undertake to keep matters confidential and have a grievance procedure for complaints and a disciplinary procedure for those found to have been behaving inappropriately.
If a complaint is received, it must be dealt with promptly, confidentially and thoroughly. The grievance procedure will normally be used, so the individual concerned will have the right to be accompanied when discussing the situation. Employees need to be confident their complaint will be taken seriously. If it is not necessary to use a grievance procedure, the situation may be dealt with informally. A quiet word advising someone that their behaviour is causing offence or is unwelcome may be all that is required. Where an informal resolution is not possible, the employer may decide that the matter is a disciplinary issue that needs to be dealt with formally at the appropriate level. As with any disciplinary problem it is important to follow a fair procedure. In the case of a complaint of bullying or harassment there must be fairness to both the complainant and the person accused. Depending upon the circumstances it may be appropriate to consider training, counselling or mediation with an independent third party for the individual whose behaviour has been found to be unacceptable.
If the complaint involves serious misconduct it may be appropriate to consider suspending the alleged perpetrator. Written warnings or dismissal may be appropriate if serious harassment or bullying is proven. Employers need to be aware that unfounded allegations can be made for malicious reasons, which in turn can develop into “witch hunts”. These need full and thorough investigation too, and should be dealt with under the disciplinary procedure. If the subject of the complaint is the individual’s line manager, the employer should get another or more senior manager or director to investigate. Where claims of bullying and harassment have been made and investigated, and action(s) taken where appropriate, it can be difficult to rebuild working relationships and move forward. Consideration may need to be given to using external parties to mediate.