Wed 11 Mar 2015

Bullying in the workplace

Bullying and harassment can lead to higher absence levels and a demotivated and unproductive workforce. In addition, any employee who is on the receiving end of bullying or harassing behaviour may have grounds to raise an Employment Tribunal claim. Employers should do all that they can to prevent this behaviour or, where the behaviour has already occurred, they should take immediate steps to deal with the situation.

What is bullying and harassment?

The types of behaviour that an employee might describe as bullying are reasonably wide. Acas have produced a Code of Practice on Bullying and Harassment at Work for employers which describes bullying as "offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient." It also provides examples of behaviour which would likely amount to bullying such as  spreading malicious rumours, unwelcome sexual advances, overbearing supervision, other misuse of power, deliberately undermining a competent worker by overloading or constant criticism.

When can a claim be brought for bullying or harassment?

The Equality Act 2010 defines harassment as occurring when an individual "engages in unwanted conduct related to a relevant protected characteristic, and the conduct 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 relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

The type of behaviour which can amount to harassment under the Equality Act is unwanted conduct relating to a protected characteristic. Therefore, for example, an employee who is a homosexual and is experiencing negative comments about their sexuality from their line manager would be able to bring a claim for harassment against their employer. It would also cover unwanted behaviour which relates to a protected characteristic due to the form it takes. For example, an employee may be able to raise a harassment claim where sexist "banter" has occurred in the workplace.

An employee can also bring a claim for harassment where they are not the recipient of the unwanted conduct but where they are associated with the person who has a protected characteristic and the conduct has still violated their dignity or created an offensive environment for them. For example the colleague of the employee who is a homosexual and experiences homophobic comments, may also have grounds for raising a harassment claim. An employee may also have grounds for a harassment claim where they are wrongly perceived to have a protected characteristic or are treated as if they do have one.

In order to be successful in a harassment claim, the employee must show that either the conduct had the purpose of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, or that it actually had this effect. A tribunal when deciding if the conduct had this effect will consider matters from the employee's own, subjective viewpoint but will also consider whether or not it was reasonable for the conduct to have this effect. If a tribunal decides that it was not reasonable, the claim will fail.

If an employee is being bullied or harassed but it does not relate to a protected characteristic then, depending on the circumstances, they may be in a position to resign and claim constructive dismissal. A constructive dismissal claim is available where an employer has fundamentally breached the employment contract and the employee resigns, without unreasonable delay, as a result of the breach. In certain cases it may also be possible to take action under the Protection from Harassment Act 1997.

Steps employers should be taking

Employers should have a bullying and harassment policy which clearly explains what amounts to bullying and harassment and makes clear that disciplinary action will be taken against any employee who engages in such conduct. Not only should employers have a policy in place but they should also ensure it is communicated to all staff, that it is followed and that the appropriate training is given on the policy. The employer should also make clear in the policy who an employee should go to if they consider that they are being bullied or harassed.

It should be borne in mind that, in terms of the Equality Act, employers are liable for acts of harassment committed by their employees, unless the employer can show that they took all reasonable steps to prevent the conduct.  With this in mind, as well as having an appropriate equal opportunities/anti-harassment policy which has been communicated and followed, employers should provide regular training to employees and managers on the terms of the policy.

The Acas guide, which can be accessed using the link above, has some helpful tips about framing a bullying and harassment policy and also further guidance on how employers can help prevent bullying and harassment in the workplace.

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