What are harassment and bullying?
Harassment is unwanted conduct affecting the dignity of employees on legally protected grounds such as age, sex or race and may be persistent or an isolated incident. The actions or comments must be demeaning and unacceptable from the recipient's perspective.
Bullying is offensive or intimidating behaviour - an abuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.
Harassment also requires the behaviour to have the purpose or effect of violating people's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The legal position
Discrimination law prohibits harassment on a variety of prohibited grounds including age, disability, colour, race, religious belief, sex and sexuality.
Because there is no single piece of legislation dealing with bullying, the legal position is more complex. However, there may still be legal protection under concepts such as:
- breach of contract -usually the implied term to ensure employees may work without harassment and disruption
- common law right to take care of safety of workers
- personal injury protection
- Health and Safety at Work Act 1974
- Employment Rights Act 1996 (for example constructive unfair dismissal)
- Protection from Harassment Act 1997
- Human Rights Act 1998.
What constitutes harassment and bullying?
Bullying or harassment may be by an individual or groups, obvious or insidious. It can range from extremes such as physical violence to ignoring someone. It can include:
- unwanted physical contact
- unwelcome remarks
- isolation or non-cooperation and exclusion from social activities
- shouting
- setting impossible deadlines
Joint responsibilities
Employers and individuals can be ordered to pay unlimited compensation where discrimination-based harassment has occurred, including compensation for injury to feelings.
How to tackle harassment?
A good policy is essential and should:
- give examples
- state that it will constitute a disciplinary offence
- describe how to get help and make a complaint, formally and informally
- promise that allegations will be treated seriously and confidentially and without victimisation
Policies should be communicated so that all:
- have been made aware about their rights and personal responsibilities - through induction and training
- know who to contact to discuss issues and how to progress a complaint.
The policy should be monitored, regularly reviewed for effectiveness and interlink with the organisation's grievance and disciplinary policy.
Advice and counselling
Employees should have access to confidential advice and counselling. Guidance and counselling can be offered to perpetrators as well as victims. Being clear as to what is unacceptable behaviour will prevent ambiguity and help stop bullying.
Informal procedures
Some minor complaints may be dealt with internally and informally and it may be sufficient for the victim to raise the problem with the perpetrator. However, if an employee finds this difficult or embarrassing, procedures should enable support from an appropriate colleague.
Formal procedures
Formal procedures are needed if the harassment is serious, the individual prefers it or where an informal approach has failed. Employers should have a clear formal policy which should comply with the Acas code of practice.
Investigation
Formal allegations should be treated as a disciplinary offence. Investigations should provide:
- a prompt, thorough and impartial response
- a companion for both parties if required
- complaint details, the right to respond and adequate time
- a time-scale for resolution
Employers should treat such issues seriously not just because of the legal implications and potential financial liabilities but also because they can lead to under-performance at work. Affected employees can be subject to high levels of stress leading to higher staff turnover, increased sickness absence and less productive and effective teams.
An employer's public image can be badly damaged particularly when bad behaviour attracts media attention. This can affect relationships between an employer, current and future employees, as well as customers.
If employers can achieve a culture in which harassment or bullying are known to be unacceptable, they will be doing well and lessen the risk of finding themselves pilloried in the way the PM has been recently, fairly or not.
Brian Palmer is a partner and head of employment at Fladgate
