Bullying, Harassment and Discrimination

Our expert Employment Law Solicitors can provide a service for any situation you are in regarding bullying, harassment and discrimination in the workplace including:

• Advising and supporting you,
• Providing a script/proforma for handling grievance hearings,
• Preparing grievance outcome and appeal letters,
• Dealing with related disciplinary matters,
• Dealing with any subsequent claims,
• Negotiating and finalising settlements.

Although there is no legal definition of bullying, workplace bullying is often defined as offensive, intimidating, malicious, insulting or humiliating behaviour, or an abuse of power or authority which attempts to undermine an individual or group of employees, and which may cause them to suffer work related stress.

Bulling can occur in many ways, such as:

• an employee being set up to fail by unrealistic targets being set
• unwarranted open criticism, belittling or intimidation of an employee
• a lack of openness and transparency within the workplace
• an employee being frozen out of meetings which they’d normally expect to attend
• an employee having their direct reports taken away
• excluding an employee from meetings, group emails, lunches or other office gatherings
• an employee being picked up on their performance, or being given a poor appraisal which is unwarranted
• blocking the promotion or training opportunities for an employee
• regularly threatening an employee’s job security
• cyber bullying with the use of email, mobile phones or social media

In many cases, the bullying conduct of the employer will be obvious. But, in other situations, it may be more subtle, and then it will be for an employer to determine whether the treatment of the employer amounted to bullying.

‘Banter’

A lot of employees accused of bullying claim that it was just ‘banter’.  This may well be the case, but there’s a fine line between banter and bullying.  An employee may not know when they’ve crossed the line from banter to bullying until it’s too late.  It is harder for an employee to claim that the conduct is unwanted if they’re actively engaged in the banter, but it’s not impossible.  They can, for example, claim that they took part in the banter as they had no choice, or that it was just their way of dealing with it.  If it is just banter then that’s okay, but employees should be aware that they can easily stray from banter to bullying without realising it.

‘Reasonable management’ and ‘Constructive criticism’

When they’re accused of bullying an employee, many managers will say that they were simply giving ‘constructive criticism’ or acting in a way reasonably necessary to properly manage the employee.  This may be true, and it if is, then they’ve not bullied the employee.  Managers are allowed to manage their subordinates as they deem necessary, providing they act reasonably.  But, if the manager abuses their power, has unreasonable expectations, sets unrealistic goals, or is aggressive, insulting or unfair in their criticism, then they’ve probably crossed the line into bullying.

Harassment is a form of discrimination under the Equality Act 2010.  It 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 relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Under the Equality Act, employers are also responsible for any harassment in the workplace, including harassment carried out by other employees.  Employers can escape liability for the actions of their employees if they can show that they took reasonable practical steps to prevent the harassment from happening, such as offering regular training and properly managing their employees.

Harassment can include such things as:

• unwelcome sexual advances – touching, standing too close, the display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected
• derogatory homophobic comments being made
• teasing and/or humiliation about a disability
• racist comments being made
• teasing someone about their age
• making derogatory transphobic comments

• To amount to harassment, the conduct complained of must have the purpose or effect of violating someone else’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment
• A one-off incident can amount to harassment
• The victim of the harassment doesn’t need to make the perpetrator aware that the conduct is unwanted
• The conduct amounting to harassment must be related to a relevant protected characteristic
• Protection includes protection against harassment based on someone else’s protected characteristic
• Harassment includes harassment based on the perception that someone has a protected characteristic.
• There is no need for a comparator i.e. the victim doesn’t need to show that they were treated less favourably than another person

Marriage and civil partnership, and pregnancy and maternity, are not relevant protected characteristics for harassment purposes (although unwanted conduct related to these matters may amount to sex or sexual orientation harassment)