Bullying at work

According to Mark Stevens, a senior associate at VWV LLP, bullying is not defined in UK law. He says, however, that “ACAS, the Government’s arbitration service, terms it as meaning ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.”

The term is often used interchangeably with harassment, which the Equality Act 2010 defines 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”. Harassment related to a protected characteristic (age, disability, gender reassignment, sex, pregnancy and maternity, race, religion or belief, marriage or civil partnership, or sexual orientation) is unlawful.

“Interestingly,” he says, “harassment which is entirely unrelated to a protected characteristic isn’t covered by the Act, but is still something an employer ought to be concerned about.” 

CONSEQUENCES FOR EMPLOYERS

Employers can be liable for harassment between employees and harassment from a third party in a work context or at a work-related event. “Employers can also be liable for the actions of those working for them if they harass others, with costly consequences.”

For a workplace discrimination claim, employment tribunals can make uncapped compensation orders (including for injury to feelings); they can also recommend employers counter the adverse effect on the claimant – failure to comply can result in increased compensation. With tribunal decisions published on www.gov.uk, dealing with a harassment claim can therefore damage an organisation’s reputation.

DEALING WITH COMPLAINTS

Mr Stevens says complaints should be dealt with promptly: “It may be that, initially, it can be resolved informally. Either way, it is important that employers have formal procedures in place.”

Good practice suggests that a policy should cover all types of grievances and disciplinary issues, including bullying and harassment, and provide alternative points of contact in case a named contact is the alleged harasser. 

One suggestion is that employers use an independent third party to help resolve workplace conflict; this might take the form of mediation. Should this fail, or the situation be too serious for an informal route, Mr Stevens says the employer will need to trigger a formal procedure.

"Employers should make it clear that there is zero tolerance"

“Investigations must be commenced in good time after a complaint is raised,” he says. “It is important that the investigation is impartial; this means employers should consider any conflicts of interest before assigning investigation roles. Investigators should ensure they take evidence from witnesses, listen to both the alleged harasser and the complainant’s version of events, and ensure confidentiality.”

It’s good practice to keep records of complaints and investigations. These should be sufficiently detailed and include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information.

If a complaint is upheld, Mr Stevens thinks that relocating or transferring one of the individuals involved might be an appropriate measure if it’s practical. At the same time, he says: “It is sensible to seek legal advice if employers wish to put in place a confidentiality or non-disclosure agreement.”

STEPS EMPLOYERS CAN TAKE

To avoid trouble in the first place, Mr Stevens says employers should “have a clear and thorough policy that states their commitment to promoting dignity and respect at work. They should be aware that their responsibilities also extend to work-related activities, such as parties or external events.”

Employers also need to be aware of the risks of ‘cyber bullying’. A picture of a work colleague uploaded to an external website, for instance, could amount to bullying for which the employer could be vicariously liable.

“Employers should make it clear that there is zero tolerance for any type of inappropriate, aggressive, or intimidating behaviour,” says Mr Stevens. “Employees should be told about the organisation’s expectations during induction, undergo training on the relevant policies and be provided with information concerning their rights and personal responsibilities.”

The policy should stress that each employee is responsible for their behaviour, and give examples of what constitutes harassment and bullying to set expectations. “The policy should clarify that harassment and bullying will not be tolerated and make clear that allegations may be dealt with under the disciplinary policy and could potentially amount to gross misconduct.”

It should also clarify the legal implications of bullying and harassment, which might include consequences for the individual. Mr Stevens would add details on how, if someone is feeling bullied or harassed, they can get help and make a complaint, whether formally and/or informally and what the relevant process is.