This week is Anti-Bullying week (14 – 18 November 2016) and events will be held up and down the country to raise awareness of the serious implications bullying can have on individuals, whatever their age.
Many people believe that bullying only occurs in the school playground, with bullies being misguided unruly youths, who eventually grow out of their behaviour. Unfortunately, this is not the case, and bullying in the workplace is becoming a more common and prevalent issue for both employees and employers.
Bullying and harassment in the workplace not only negatively effects the individual on the receiving end of the unwanted behaviour, but also can have a detrimental impact on the culture of the business, staff morale and productivity. It is in everyone’s interest to identify and address issues which arise, promptly, fairly and consistently.
What is bullying in the workplace?
Bullying is offensive, intimidating, malicious or insulting behaviour that can make a person feel vulnerable, upset, humiliated, undermined or threatened.
In the workplace. bullying can take the form of physical, verbal and non-verbal conduct and may include
- physical or psychological threats;
- overbearing and intimidating levels of supervision;
- inappropriate derogatory remarks about someone’s performance.
What is harassment?
Harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Unlawful harassment may involve conduct of a sexual nature (sexual harassment), or it may be related to age, disability, gender reassignment, marital or civil partner status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief, sex or sexual orientation. Harassment is unacceptable even if it does not fall within any of these categories.
Case Law Examples
- In Bivonas LLP and other v Bennett, a handwritten note found by an employee referring to his ‘batty boy mate’ was direct sexual orientation discrimination. In this case, the importance of providing employees with training on equality and diversity was emphasised.
- Repeated questions about an employee’s sexuality amounted to sexual harassment and the company was criticised for dismissing the behaviour as ‘office banter’ in Austin v Samuel Grant (North East) Ltd.
- Even a one-off comment is enough to constitute discrimination. In Clements v Lloyds Banking plc and others the comment ‘you are not 25 anymore’ was found to be age discrimination.
- In Harper v Housing 21, repeatedly likening an employee to a women on ‘My Big Fat Gypsy Wedding’ was direct race discrimination, racial harassment and warranted constructive dismissal.
- What constituted acceptable office banter was considered in Minto v Wernick Event Hire Ltd. The tribunal said: “‘Banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level. It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job.”
What should you do as an employer?
Employers should have a clear Anti-Bullying and Harassment Policy contained within their Employee or Staff Handbook to set out how they will support employees and address allegations of bullying and harassment. Bullying can occur in any workforce, whether it is a small family run business, a construction site or large corporation. Employers must acknowledge that they have a duty to protect not only their employees, but anyone who comes into contact with the business including but not limited to contractors, subcontractors, workers, volunteers, clients, customers and suppliers.
It is important that employers deal with any complaints fairly, compassionately and are consistent in their approach. Often complaints will be of a sensitive nature and require careful handling. Employers should decide whether the complaint can be dealt with informally or whether more serious action is required. Once an employer becomes aware of an issue they should conduct an investigation and speak to all those involved. It may be necessary to consider suspending an employee to ensure that an unhindered investigation can take place. Any disciplinary process which follows, should be in line with the company Disciplinary Procedure, which should also be contained within the Employee or Staff Handbook.
What should you do as an employee?
Employees should act promptly and address any behaviour that they are uncomfortable with. They should first consult the company’s Anti-Bullying and Harassment Policy, however if the company do not have one, then the starting point will be to try and resolve the issue informally. This could include having a chat with managers and colleagues, who may not be aware that their behaviour is causing offence or upset. If this is ineffective or the matter is more serious, then a formal grievance should be raised. The Company should have a Grievance Policy to guide an employee through this process.
What legal claims do you need to be aware of?
An employer who fails to address complaints of bullying and harassment, or handles a complaint incorrectly, could find themselves on the receiving end of an employment tribunal or county court claim. An employee may be able to bring claims for discrimination, constructive unfair dismissal, personal injury and breach of contract.
It is important that Employers have clear policies contained within in their Staff or Employee Handbook. If you do not have an Anti-Bullying and Harassment Policy, a Disciplinary Policy, a Grievance Policy, or even a Staff or Employee Handbook, then Bhayani HR & Employment can provide you with everything you need to ensure your business is compliant and proactively addressing issues relating to bullying and harassment.
If you are an employee and you are unhappy with how your employer has dealt with an issue, you should seek legal advice for further confirmation and clarification of your rights and any legal action you may be able to take. Bhayani HR & Employment Law have a team of specialist solicitors, with years of experience in bringing successful legal claims arising from bullying and harassment.