EMPLOYMENT LAW FOR EMPLOYERS

Bullying, Harassment and Discrimination

HR and Employment > Employers > Bullying, Harassment and Discrimination

Dealing with bullying, harassment and discrimination in the workplace

Bullying, harassment and discrimination are very sensitive subjects and any accusation of them in the workplace must be treated with care.

As usual, there’s a right and a wrong way of dealing with these situations but it can be hard to know what decision to make. Our team of expert Employment Law Solicitors can guide you towards making the right decision and avoid any further legal action as a result.

Bullying, harassment and discrimination can take different forms in the workplace but it’s important to recognise when a situation arises and the severity of it.

Employees should raise a grievance if they feel they’ve been bullied, harassed or discriminated against at work.  As a result, you may have:

  • Work through the grievance that your employee has raised about their situation and handle it properly,
  • Decide what to do with the evidence you’ve gained from your investigation into the grievance,
  • Make a determination about the grievance, and communicate it to your employee,
  • Potentially defending your decision if the outcome of the grievance hearing is appealed,
  • Deal with any disciplinary action that needs to be taken as a result of the bullying, harassment and/or discrimination,
  • Defend against any potential employment tribunal claims that arise as a result of the bullying, harassment and/or discrimination, or from the outcome of the disciplinary process.

What Bullying, Harassment and Discrimination Related Services do we provide for employers?

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.

What is workplace bullying?

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.

What are the common excuses for 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.

What is harassment?

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

Key points about harassment

  • 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)

What about “the banter excuse”?

A lot of employees accused of harassment claim that it was just ‘banter’.  This may well be the case, but there’s a fine line between banter and harassment.  An employee may not know when they’ve crossed the line from banter to harassment 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 across the invisible line, from banter to harassment, without realising it.

What are the consequences of bullying and harassment?

Bullying and harassment in all its forms is destructive and, in some cases, it can have a serious detrimental effect on the individual affected by harassment.  Usually, the most obvious consequence of bullying and/or harassment in the workplace is the impact on the employee’s productivity, but it may also impact adversely on their health.  In addition, employees may decide to leave their employment as a result of bullying and/or harassment.  This means the employer not only loses experienced employees, but it also has to incur the expense of recruiting and training up new staff members.

Employers also the risk of being taken to an Employment Tribunal for unfair dismissal, discrimination, breach of contract, wrongful dismissal or a combination of two or more or them.  This can cost the employer in time and legal fees, as well as leaving them open to an award being made against them in the tribunal.    In addition (although it’s quite rare) an employee may decide to bring a harassment claim under the Protection from Harassment Act 1997 through the courts.

Bullying, Harassment and Discrimination FAQs

What claims can an employee make if they’re being bullied?

It isn’t possible to make a claim directly for ‘bullying’. But, if an employee has worked for their employer for at least two years, then they can resign from their employment and claim that they have been constructively unfairly dismissed. To succeed, they’ll need to show that the breach was sufficiently serious to amount to a breach of a fundamental term of their contract of employment (usually the implied term of mutual trust and confidence), and that they resigned as a result of that breach of contract.

If the employee is successful, they can be awarded a compensatory award to cover their financial losses (capped at the lower of a year’s pay or £105,707), a basic award (calculated the same way as a statutory redundancy payment), and a few hundred pounds to reflect the fact that they were a protected employee in the previous role, and they won’t be for the first two years of their next job.

What steps can employers take to help tackle harassment and bullying?

The starting place for any employer that wants to tackle bullying and harassment, is to have an appropriate policy in place. The policy should explain what bullying and harassment are and include examples to make it clear what type of behaviour is considered unacceptable. It should also set out what an employee should do if they feel they’re being bullied and/or harassed and explain the consequences of someone being found guilty of bullying and/or harassing a colleague.

A clear policy statement may provide a good foundation, but employers will need to back up the policy by ensuring that both managers and employees receive training on bullying and harassment in the workplace. Manages should not only be trained on what bullying and harassment are, but also on recognising them in the workplace, and dealing with them appropriately.

The final, and perhaps most important, step is to take incidents of bullying and harassment seriously. This includes providing a safe space for employees to report any concerns they have, investigating any allegations made, and taking appropriate (including disciplinary action) if it is found that an employee has been bullied and/or harassed.

Employment Law Specialists at Atkins Dellow

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