Bullying and harassment includes any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended. Bullying that is based on protected characteristics – such as race, gender, age, sexual orientation, or disability – would be covered by the Equality Act and would be illegal. The affected employee could bring a claim against the employer but also against the individual who has acted in a discriminatory fashion.
In extreme cases bullying can also lead to a potential personal injury claim from the affected employee if they became ill as a result of the bullying. In such cases the employee may also be able to bring a claim under the Protection from Harassment Act 1997 for damages for any anxiety caused by the harassment, and resulting financial loss and criminal proceedings may also be possible.
Bullying concerns can be raised against workplace colleagues but also in relation to the behaviour of more senior members of staff. It can involve low-level persistent behaviour that seeks to undermine someone or a one-off more serious incident. In more serious cases bullying or harassment may involve a group of people targeting an individual and could include verbal and written communications, including on social media.
When any allegation of bullying is raised the employer will need to assess whether a formal investigation is necessary. An appropriate investigation into the alleged bullying can go a long way towards mitigating potential risks and establishing appropriate next steps for the employer. In many cases allegations of bullying will result in an investigation, followed by a possible grievance process and also disciplinary action against anyone who is found to engage in bullying behaviour.
Bullying can give rise to constructive dismissal claims if an employer does not deal with the issue properly. However, an investigation and grievance process that isn't conducted properly can itself have a far-reaching adverse impact and could result in allegations from the original complainant but also other participants in the process.
While an investigation process can be time-consuming and costly, one of the positive outcomes can be an opportunity to manage the associated risks and ascertain system or management failures that may have contributed to the original bullying. The process provides a chance for employers to adapt their internal policies and systems to try to reduce the risk of similar bullying behaviour in future.
However, it is always worth giving some thought after the initial investigation stage as to whether a less-formal approach may be appropriate in any given situation. For less-serious cases not involving any discrimination aspects, it may be an option for HR to seek to mediate between the parties or bring in an external mediator. In terms of follow-up action, a formal apology and training on effective workplace communication or equal opportunities can sometimes be helpful in resolving the situation in less-serious cases.
The standard advice to employers wishing to avoid bullying claims in the workplace is to have a robust bullying and harassment policy. But as with all policies, making sure this is consistently applied and that managers are trained in implementing it effectively will be key.
In some instances the worst bullies can be commercially very successful and possibly consider themselves untouchable. However, the unseen impact of lost productivity, sickness, HR and other management time and legal fees needs to be brought into the mix if the true cost of bullying is to be assessed. For employers the question is not how to prevent claims by employees, but how to prevent bullying and harassment in the workplace in the first place. That may require a culture change and zero tolerance at highest management levels.
Bettina Bender is an employment partner at Winckworth Sherwood
