Tina Chander, a partner and head of the Employment law team at Wright Hassall, addresses workplace harassment and bullying.

 

Claims of bullying and harassment in the workplace have once again grabbed the headlines in the national media, on both sides of the Atlantic. But even for those who do not work in palaces, the impact of personal attacks by colleagues can be devastating.

One such common issue is ‘invisible’ workplace bullying. This is when an employee has a feeling they are being talked about behind their back.

Being deliberately left out of conversations or feeling others are commenting on your ability, appearance or spreading malicious rumours or derogatory comments about your personal life, can have serious consequences for the mental wellbeing of the individual concerned.

This kind of bullying tends to come to light when other employees overhear or see unacceptable behaviour. Or when senior managers come across emails or chat history across a corporate network.

There is a perception that bullying is something that only happens face to face. However, employers need to be aware that bullying in the workplace frequently occurs by phone and online via corporate facilitated chat functions or email.

For those organisations that ignore it or do not take adequate steps to prevent it, the outcome could be costly; both monetarily and reputationally.

Bullying and harassment – what are the differences?

It goes without saying that bullying and harassment are unwelcome in any workplace. The presence of these can have a significant impact on employee welfare, talent retention and general productivity.

Harassment is defined 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’.

The protected characteristics include; age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage or civil partnership and pregnancy or maternity.

If an employee can demonstrate that they have suffered harassment that is related to a protected characteristic, they will be eligible to bring a claim for discrimination under the Equality Act 2010 (“the Equality Act”).

There are also occasions whereby an employee is entitled to bring a discrimination claim under the Equality Act; despite the employee not having the protected characteristic themselves. Therefore, it is important to bear in mind the following two situations:

(i) Where an employee is harassed because they are believed to have a protected characteristic, even though in reality they do not. This is known as “perceived discrimination”; and

(ii) Where an employee is harassed because of a protected characteristic that they do not personally possess but is possessed by someone they have a relationship with; i.e. their friend, partner or family member. This is known as “associated discrimination”.

However, it is important to remember that perceived and associated discrimination do not apply to all the protected characteristics. Claims cannot be bought in relation to marriage and civil partnership or pregnancy and maternity for perceived or associated discrimination.

In the event an employee is unable to link the harassment to one of the nine protected characteristics listed above, such a route of redress via the Equality Act will not be available to them.

Unlike harassment, bullying does not fall under the Equality Act. Therefore, a claim on the basis of discrimination is not an option in respect of an employee who has been bullied, unless they can show the bullying also falls under the definition of “harassment”. This does not mean that employees who suffer from workplace bullying have no means of redress. However, it can be more difficult for these employees to ascertain the appropriate route forward given there is not one single piece of legislation that deals with this.

One option these employees may be able to rely on is that of Constructive Unfair Dismissal if they feel the bullying leaves them with no alternative but to resign. This claim would be on the basis that their employer has breached an express contractual term or the implied term of trust and confidence; perhaps through not sufficiently addressing the bullying. Or, by failing to implement reasonable procedures in the workplace to combat such behaviour. However, it is important to note that such a claim is only available to employees who have two years of continuous service with this employer.

Drafting a thorough policy

From a business perspective, steps must be taken to prevent such behaviour. This will show colleagues that you take such matters seriously and measures are in place to deal with accusations.

One of the most effective ways to prevent it is to develop and circulate a well-drafted bullying and harassment policy; ideally using some of the advice and guidance that is offered by an experienced legal team.

Before drafting the policy, it is crucial that the senior management team is on board and committed to enforcing it. This means recognising that harassment and bullying exists and understanding the impact it can have on individuals.

Within the policy, it should be made clear that bullying and harassment is unlawful and will not be tolerated under any circumstances. By providing examples of behaviour that might constitute bullying and harassment, you can remove any grey areas, warning that a breach of the policy could result in disciplinary action.

It should also reassure complainants that any issues raised will remain confidential. Provide reference to the company’s grievance procedures where necessary. Make it clear that the same rules apply to employees working away from the office, too.

The aim of your carefully drafted policy is to try, where possible, to eliminate or at least reduce instances of harassment and bullying in the workplace.

Other steps to take

Whilst a carefully drafted policy is a good starting point, it is not always enough to prevent harassment and bullying on its own. A responsible employer must ensure its workforce are aware of the issues, offering training to staff on how to act consistently.

Firstly, employees should be taught about the damage bullying and harassment does; both to the employer and employees. Reference should be made to the staff handbook regarding acceptable behaviour and conduct. Not only this, but employees should be shown how to correctly register a complaint. This will reassure them that any issues raised will be dealt with appropriately.

Employers should be clear about the standards of behaviour they expect; offering guidance on how working relationships should be managed so that potential conflicts can be nipped in the bud before they escalate.

This is where strong leadership comes into play. The behaviour of senior managers will set the tone of professional behaviour and colleagues will follow the examples set. Effective leadership also means spotting the signs of bullying and harassment; acting quickly to address the situation before it develops.

A consultative management style with an ‘open door policy’ is an effective way to tackle workplace bullying and harassment. Employees then feel they can approach management if issues occur.

Don’t ignore the problem

Of course, all organisations want to resolve accusations of bullying and harassment quickly; enabling the complainant(s) to put the issue behind them and focus on work.

However, some incidents may be serious and demand more of the employer’s time. In this case, it is important to work through the complaint with the cooperation of all the involved parties. Don’t make the mistake of thinking it has been sorted after one conversation.

If you fail to take the complaint seriously, you immediately show the employee this type of behaviour is acceptable. This is detrimental to the emotional wellbeing of the individual, who may then escalate the issue to senior management.

Not only that, but dealing with a Tribunal claim can be lengthy and costly. It is also capable of damaging the reputation of your business; especially if it becomes clear that the issue was not handled properly.

Instead, tackle the issue head-on. Take all appropriate action to put a stop to unacceptable behaviour, including taking disciplinary action against the perpetrator(s).

In conclusion

No business wants to believe that incidents of harassment or bullying would take place. But inevitably, there will be employees that suffer from some form of inappropriate behaviour.

Whilst it is important for organisations to introduce policies that reduce the risk of such incidents occurring, senior management must do all they can to educate employees and ensure complainants are supported when issues come to light.

If your business is finding it difficult to draft a comprehensive policy or it requires legal guidance with a recent incident, then it is important to contact an experienced legal team to assist before the problem worsens.