Harassment and bullying are an unwelcome feature of any workplace and are likely to have a negative impact on your business, affecting not only your employees’ welfare but also your ability to retain them, potentially also increasing absences and disturbing productivity levels. So, what employment law considerations do you need to take on board? And how can you minimise and deal with harassment and bullying in the workplace when it does arise?
- Bullying and harassment in the workplace: employers’ responsibilities
- Harassment vs bullying: what’s the legal difference?
- What claims can be brought against employers?
- Behaviour which amounts to harassment or bullying
- What is sexual harassment?
- What should I put in a bullying and harassment policy?
- What else can I do to prevent bullying or harassment in the workplace?
- How to deal with bullying or harassment in the workplace
- Dealing with complaints and investigations
Bullying and harassment in the workplace: employers’ responsibilities
As an employer, you may have written grievance and disciplinary procedures and these can be used when dealing with cases of bullying and harassment in the workplace. There should, however, be a clear and accessible bullying and harassment policy to best deal with these issues in a prompt, sensitive and consistent manner, which will leave you less vulnerable to claims.
Harassment relates to a protected characteristic under the Equality Act 2010 and so to avoid a claim under that Act, employers must not discriminate or foster a discriminatory environment in any way. Instead, active steps should be taken to try to prevent harassment and bullying in the workplace.
Employers have a legal duty of care for their employees. So, if the implied term of mutual trust and confidence in their employment contract is breached by bullying and harassment at work, an employee with two or more years of service could resign and claim constructive dismissal.
Breach of contract may also include the failure to protect an employee’s health and safety at work. Under the Health and Safety at Work Act 1974 you are responsible for the health, safety, and welfare of all employees at work and must ensure that you provide a safe working environment. This includes employees being treated fairly and with dignity and respect at work.
Harassment and bullying can cause employee stress which can reduce productivity and may increase labour turnover, sickness absence, and under-performance. This can lead to resignations of good staff and employment tribunal claims, and so aside from an employer’s legal obligations, there is a moral and commercial incentive to try to prevent and effectively deal with harassment and bullying.
Harassment vs bullying: what’s the legal difference?
Harassment is ‘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’.
The protected characteristics are:
- gender reassignment
- religion or belief
- sexual orientation
- marriage or civil partnership
- pregnancy and maternity
If an employee can prove harassment based on a protected characteristic, they are able to bring a discrimination claim under the Equality Act with potentially uncapped compensation being awarded by the employment tribunal.
Bullying tends to be repeated, unreasonable and unwelcome behaviour directed towards an employee or group of employees which is not linked to a protected characteristic and that creates a risk to health and safety.
Bullying does not fall under the Equality Act and a discrimination claim is not an option. Bullying is related more to providing a safe workplace for employees. There is not a stand-alone claim for bullying which can be brought in an employment tribunal. Employees are more likely to struggle to make a successful claim in respect of bullying than harassment, as they would need to demonstrate a breach of contract or evidence a claim that health and safety legislation has been breached by the employer.
What claims can be brought against employers?
Employers are liable for their own actions if they are committing harassment directly, but they are also vicariously liable for their employees under the Equality Act. Any harassment caused by an employee is treated as if it has been done by the employer, whether the harassment is done with the employer’s knowledge or approval.
There is a defence available to employers under the Equality Act, if the employer can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act or from doing anything of that description. The liability of employers does not extend to criminal liability, apart from offences relating to disabled persons and transport. The employee has three months from the date of the complained act (or last complained act if part of a series of linked events) to bring a claim for harassment in an employment tribunal.
In terms of employee discrimination by third parties such as visitors or customers, it used to be that employers were liable for harassment if they failed to take such steps as would have been reasonably practicable to prevent it and knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (whether or not the third party was the same person on each occasion).
However, now the position is that an employer will only be liable in limited and exceptional circumstances where an employee is harassed by a third party. It is only if the employee can show that the protected characteristic was the reason for the employer’s failure to protect them against the harassment by the third party. It is the grounds for the employer’s action or inaction, not the third party’s harassment, which will determine whether an employer is liable.
This may be an area of imminent change as the government is consulting on whether new third-party harassment provisions should be introduced and, if so, when an employer should become liable. Once an employer is aware of harassment caused by a third party it should take reasonable and proportionate actions to deal with this.
Breach of contract claims will be brought directly against the employer in the case of alleged breach of health and safety or breach of trust and confidence. The employee will have up to five years from the breach of contract to bring a claim.
Behaviour which amounts to harassment or bullying
As detailed above, the behaviours for harassment and bullying may be similar, but the root of them is different. Bullying tends to stem from an insecurity, whereas harassment is linked to a protected characteristic that an individual has. Behaviour which is likely to amount to harassment and bullying are:
- Spreading malicious rumours or insulting someone by word or behaviour.
- Making offensive or intimidating comments or jokes.
- Copying memos critical about someone to others who do not need to know.
- Ridiculing or demeaning someone – picking on them or setting them up to fail.
- Exclusion or ‘freezing out’ or victimisation.
- Unfair treatment.
- Overbearing supervision or micromanagement or other misuse of power or position.
- Creating unreasonable or impossible deadlines or tasks.
- Unwelcome sexual advances – touching, standing too close, display or the sending of offensive / pornographic materials, making sexual jokes asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected.
- Making threats or comments about job security without foundation.
- Deliberately undermining a competent worker by overloading and constant criticism.
- Preventing individuals progressing by intentionally blocking promotion, salary increases or training opportunities.
Bullying and harassment might be face to face, in writing, in visual images (for example pictures of a sexual nature or embarrassing photographs), automatic supervision methods (for example, computer recording of downtime from work, or recording of telephone conversations if all workers are not treated in the same way).
What is sexual harassment?
If the harassment is of a sexual nature and fits the rest of the definition above for harassment, this is sexual harassment and can also lead to a claim under the Equality Act. Something can amount to sexual harassment even if the perpetrator did not have intent that it would be harassment, and the behaviour does not have to be directed at a specific person. Sexual harassment may be a one-off incident or an ongoing series of incidents and can be written or verbal comments of a sexual nature (for example remarks about an employee’s appearance, questions about their sex life or offensive jokes), displaying or messaging pornographic or explicit images or text, unwanted physical contact, and sexual assault. Sexual assault and other physical threats are criminal as well as employment matters and should also be brought to the attention of the police.
What should I put in a bullying and harassment policy?
One way you can prevent harassment and bullying from happening in the workplace is to develop and circulate a well drafted bullying and harassment policy. Aside from seeking specialist legal advice from employment solicitors to ensure that your specific business is best covered, here are some other pointers for developing an effective bullying and harassment policy:
- Ensure that senior management are on board, committed to the policy and its aims and recognise bullying and harassment exists and must be dealt with.
- It should be made clear at the beginning of the policy that bullying and harassment is unlawful, will not be tolerated and could result in disciplinary action.
- A statement should be made in the policy that decisions should not be taken on the basis of whether someone submitted to or rejected the harassment.
- Clear examples of behaviour that might constitute bullying or harassment should be provided.
- The steps the organisation takes to prevent bullying and harassment should be outlined.
- Responsibilitiesof managers under the policy should be set out.
- It should be made clear that any issues raised by employees under the policy will remain confidential, so far as is possible.
- Reference to the company’s grievance procedures should be made.
- The policy should advise employees of the investigation procedures, including timescales for action.
- It should be made clear that the policy applies to staff on and off the premises, including those working away from base their main place of work. The policy should also make plain that bullying or harassment of staff by visitors to the organisation will not be tolerated.
To draft an effective bullying and harassment policy, remember that the aim of the policy is to try, where possible, to eliminate or at least reduce instances of harassment and bullying in the workplace. And where there is a complaint made, ideally there should be effective resolution of the complaint from the complainant’s point of view, preferably retaining a strong employment relationship.
What else can I do to prevent bullying or harassment in the workplace?
Aside from drafting an effective bullying and harassment policy, there are other things you can do to try and reduce instances of bullying and harassment. It is critical that staff are well trained on how to apply your business’ bullying and harassment policy and are familiar with the process. The policy will also need updating at regular intervals to make sure that the policy remains effective and fit for purpose.
Separate from the bullying and harassment policy, you should also consider:
- Keeping the business’s other related policies such as the grievance and disciplinary policies up-to-date and effective.
- Counselling or other support that can be offered to employees who make a complaint of harassment and bullying. This may be specialist external support, particularly if there is a serious or criminal complaint alleged.
- Clarity about standards of behaviour you expect. A staff handbook or other guidance notes might help communicate expected behaviour and how working relationships should be professionally managed, dealing promptly and effectively with conflicts, before they escalate.
- The behaviour of senior managers, which will set the tone of professional behaviour. It is critical to ensure that strong management is not confused with micromanaging or overly asserting authority over less senior employees. A consultative management style with an ‘open door policy’ and clear communication is less likely to encourage bullying and harassment than a more authoritarian style.
- Training all employees about the damage bullying and harassment does both to the employer and to employees, and on the terms of any staff handbook or additional company policies.
- Ensuring that employees know how to complain correctly and that complaints of bullying and/or harassment, or information from staff relating to such complaints, will be dealt with fairly, confidentially, and sensitively.
How to deal with bullying or harassment in the workplace
Whenever a complaint about bullying or harassment is made, this must be promptly and thoroughly investigated. The investigation must be objective and independent and must appear to be so. Employers should consider the process and all the facts and circumstances carefully before coming to a decision. If what has happened could be reasonably considered to have caused offence, it is likely that you will find in the employee’s favour.
It may be that a colleague is unaware that their behaviour is unwelcome, and the matter can be dealt with informally and the behaviour will immediately cease. If this is the case and the complainant employee is comfortable that this settles matters, that is the end of the matter. HR, a manager, an employee representative, or a counsellor could assist with this informal approach. Counselling can be particularly useful where investigation shows no cause for disciplinary action, or there is doubt on how valid the complaint is. Counselling may resolve the issue or help support the person accused and/or the complainant.
Mediation can sometimes help resolve disciplinary or grievance issues. Mediation is a voluntary process where the mediator helps both parties find a solution to an outstanding dispute, that they can both agree to. This will only work if both parties are both seeking to resolve the issues and repair the working relationship. Mediation can be a good way of dealing with bullying, discrimination, or harassment situations, but this will be dependent upon the nature of the allegations. Discrimination or bullying actions can range from unintentional misunderstandings and lack of awareness through to deliberate and malicious acts. In some cases, the individual and/or the organisation may view the allegations to be sufficiently serious that investigation and possible disciplinary action is the only route.
If the bullying or harassment cannot be dealt with informally or this would be inappropriate due to the nature of the harassment or bullying, this should be dealt with by the company’s disciplinary procedure. This procedure should follow the ACAS Code of practice on Disciplinary and Grievance Procedures (ACAS Code) and any company policy drafted to ensure fairness for the complainant and accused.
Dealing with complaints and investigations
Complaints of bullying and harassment can usually be dealt with using clear grievance and disciplinary procedures which comply with the ACAS Code. Once a formal grievance has been raised in writing by the employee, the disciplinary procedure against the accused should begin without unreasonable delay. Any complaint of bullying or harassment must lead to a prompt and thorough investigation. Even if a victim of bullying does not wish to make a complaint, this may still be investigated in the interests of health and safety of the business and avoiding recurrence. The exception to this might be if an employer has evidence that a complaint has been made maliciously or in bad faith. In that instance an employer may even discipline the complainant but would need to have clear evidence of bad faith to do this.
Procedures followed to deal with bullying and harassment should inform the accused employee of the problem, allow them sufficient time to prepare their case. A meeting should be held to discuss the problem where both the person making the complaint and the accused has the right to be accompanied by a fellow employee or trade union representative of their choice. Following a fair hearing, a written response should be provided within a reasonable time and appropriate action should be taken. The employee should also be offered an opportunity to appeal. Confidentiality must also be provided for, throughout the process.
If serious misconduct is complained of, there may be reason to separate the complainant and accused employees and so a short period of suspension of the accused (usually on full pay unless the employment contract states otherwise) may need to be considered while the case is being investigated.
If an informal conversation, mediation, counselling, or training is deemed insufficient to resolve the issue another penalty will be required to deal with the instance of bullying/harassment complained of. Following a formal hearing, other penalties might include written warnings, suspension or transfer of the bully/harasser or even dismissal if the employee has previous unexpired written warnings or if the employee’s behaviour amounts to gross misconduct.
All the circumstances will need to be considered carefully before penalties are handed down, such as:
- The employee’s previous disciplinary and general record.
- Whether the procedure points to the likely penalty.
- What action has been taken in previous similar cases, if any.
- Explanations and circumstances in the particular case and whether the penalty is reasonable.
The more extreme the penalty the more liability the employer will face if it gets it wrong and so penalties should be carefully considered before they are issued. An incorrect finding of gross misconduct could lead to a possible unfair dismissal and wrongful dismissal claim.
Whilst all complaints of bullying and harassment should be dealt with sensitively and have provisions for confidentiality to protect both the complainant and accused, where the allegation relates to sexual harassment this should be taken very seriously. This type of allegation is often particularly emotional and distressing for the employees involved (complainant and accused) and so it is critical that reporting is confidential and as clear as possible. The process should allow plenty of time to discuss the matter in a private space and possibly with a friend or family member to accompany, not just a colleague or trade union representative, as would usually be permitted in internal formal meetings. Additional support is likely to be required in this type of case, for the complainant and accused, whether with HR, external counsellors or even through the police if the matter is criminal. As a bare minimum, as with other complaints of bullying or harassment, the company’s disciplinary procedure and ACAS Code must be complied with.