Bullying and harassment

Bullying and harassment in a workplace are serious matters, and employers are responsible for taking reasonable steps to prevent such behaviour.

The equality legislation makes it unlawful in employment or vocational training to harass someone on the grounds of:

• sex
• gender reassignment
• race
• disability
• religion/belief
• sexual orientation 
• age

Harassment of a sexual nature is also unlawful.

Bullying and harassment are unacceptable on moral grounds and may, if they are allowed to go unchecked or are badly handled, create serious problems for your business. Harassment is also against the law and can result in an employment tribunal or other civil claims against the employer and large awards in compensation.

Bullying and harassment can also have a bad effect on your business in other ways, including poor performance, low staff morale and poor employee relations, loss of respect for management, increase in absence, higher staff turnover and damage to your business’ reputation.

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What is meant by bullying and harassment?

Harassment – in relation to employment – has a legal definition, but bullying does not.

Bullying

There is no single legal definition of bullying, but it can include:

• offensive or insulting behaviour by another employee which makes an individual feel threatened, or taken advantage of
• humiliation of an employee
• less obvious ways of making an employee feel frightened or demoralised

Some common forms of bullying are:

• verbal abuse – eg persistent taunting
• physical violence or violent gestures
• public humiliation of an employee

However, bullying can be more subtle, such as:

• giving someone an impossible deadline
• removing an employee’s responsibilities and giving them more menial tasks
• withholding information or giving false information

Harassment

Harassment related to sex, gender reassignment, race, disability, religion/belief, sexual orientation and age, along with sexual harassment, is explicitly prohibited in employment and vocational training.

Harassment is defined as any unwanted conduct related to race, age, etc that has the purpose or effect of either:

• violating the dignity of an individual
• creating an intimidating, hostile, degrading, humiliating or offensive atmosphere for an individual

Note that an employee can claim harassment even if the harassment was not actually directed at them, eg where a female worker overhears a female colleague being verbally harassed by a male colleague and it violates their dignity.

Sexual harassment is defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of either:

• violating an individual’s dignity
• creating an intimidating, hostile, degrading, humiliating or offensive environment for an individual

It can also occur when an individual:

• rejects the unwanted conduct mentioned above or unwanted conduct related to gender reassignment or sex, and
• is treated unfairly as a result

It’s important to note that, while sexual harassment is commonly committed by a man against a woman, it can also be committed by a woman against a man, by a man against another man or by a woman against another woman.

Third-party harassment

It is unlawful to allow an employee to be persistently harassed by a third party, eg a client or customer.

However, you may only be liable for such harassment if:

• you know that the employee has been harassed in the course of their employment on at least two other occasions by a third party, and
• you have not taken reasonable steps to stop it happening to that person again

Note that it does not matter whether the third party is the same or a different person on each occasion.

Examples of third party harassment include:

• embarrassing or otherwise offensive jokes
• unwelcome physical contact or sexual advances
• the expression of racist, homophobic, etc views
• lewd comments and innuendo
• the sending of offensive emails, text messages, etc
• displays of pornographic material

It is possible that some incidents of harassment may not be covered by the anti-discrimination legislation. However, if an employer fails to deal with any form of harassment, the victim could resign and claim constructive dismissal. See the page in this guide on the impact of bullying and harassment.

It is good practice for employers to have a bullying and harassment policy giving written examples of what is unacceptable behaviour in their organisation. See the page in this guide on drawing up an anti-bullying and harassment policy.

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Why does bullying and harassment occur?

Bullying and harassment may occur because of underlying problems in the workplace such as:

• poor job design and work relationships
• lack of accountability
• the existence of a particular culture at work
• an over-competitive environment
• fear of redundancy
• a rigid style of management
• lack of procedure for resolving problems

If bullying and/or harassment is a problem in your workplace, try to find out why it’s happening before taking action.

For example, if a number of employees have started to complain of being on the receiving end of sexist jokes, it may be that there is a culture of sexist banter in your workplace. If so, you could:

• take informal disciplinary action against those telling the jokes, eg verbal or written warnings
• remind all your staff about your bullying/harassment policy, eg that bullying and harassing colleagues is a serious disciplinary matter

See the page in this guide on dealing with bullying and harassment claims.

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The impact of bullying and harassment

Employers should be aware of the potential legal implications of bullying and harassment in the workplace.

Harassment of an employee can amount to:

• unlawful discrimination on the grounds of race, sex, gender reassignment, disability, religion/belief, sexual orientation or age
• a breach of contract, ie a breach of one of the implied terms of any employment contract, such as the duty to provide a safe working environment or to maintain trust and confidence in the employer
• a criminal offence

You could be liable for the actions of your employees unless you have taken reasonable steps to prevent bullying or harassment. Action could still also be taken against you even after a person has left your employment.

You could also be held liable for harassment if you fail to prevent a third party, eg a customer, harassing an employee.

However, you may be liable for such harassment only if you know that the employee has been harassed in the course of their employment on at least two other occasions by a third party.

Note that it does not matter whether the third party is the same or a different person on each occasion.

Bullying and harassment can also have a serious adverse effect on the success of the business leading to reduced productivity and profits. This is because bullying and harassment can cause:

• low morale and poor employee relations
• loss of respect for managers
• reduced productivity and profits
• increased absenteeism and turnover of staff
• damage to the image of the business
• employment tribunal or other civil court claims- see our guide on employment tribunal claims – the basics

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Recognising bullying or harassment

Bullying and harassment can often be hard for employers to recognise, particularly as it may not be obvious to colleagues of the person being bullied or harassed.

This may be because:

• the harassment or bullying is done in subtle ways
• staff may think it’s part of the ‘culture’ of the workplace

An individual may also be too frightened to report an incident.

A good employer should be aware of this, and keep an eye out for some of the possible signs of bullying and harassment.

Signs may include:

• absenteeism – if this is more frequent, or for longer periods than usual
• high staff turnover – especially if it occurs in a particular section or where staff work for a particular manager
• stress symptoms – including fatigue, anxiety, depression, immune system suppression, aches, pains, numbness and panic attacks
• a change in an individual’s behaviour or performance at work

Bullying and harassment may be carried out face-to-face. However, it may be done in more underhand ways, such as:

• by letter
• electronically, by email
• by phone
• at work-related social functions

See our guide on how to manage absence and sickness.

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Preventing bullying and harassment

Employers are responsible for preventing bullying and harassment, so it is in your interest to have a policy to avoid it and put procedures in place to implement the policy. See the page in this guide on drawing up an anti-bullying and harassment policy.

It is your responsibility to make sure that any policy has been properly implemented, is understood by staff and is being used and monitored properly. If a tribunal believes that all reasonable steps have been taken by the employer to prevent bullying and harassment, it may avoid liability.

You should make sure that:

• All the management team are seen to be fully committed to the policy.
• You identify who is in overall charge, and in day-to-day charge, of implementing the policy.
• You have set aside time to train those in charge on their responsibilities.
• The policy covers all the areas covered by anti-discrimination law. See our guide on how to prevent discrimination and value diversity.
• The policy is linked to other disciplinary and grievance procedures and any appraisal system for managers.
• You use all appropriate ways to advertise the policies to your workforce including any induction process.
• You keep note of complaints so you can detect any patterns of inappropriate behaviour. Remember that an absence of any complaints does not necessarily mean that bullying and harassment is not going on.
• You review the policy from time to time to make sure it’s working properly.

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Drawing up an anti-bullying and harassment policy

Ideally you should draw up a bullying and harassment policy in consultation with staff and/or their representatives.

For example, trade unions may help you as they may well have experience in handling bullying and harassment cases.

Your policy on bullying and harassment could include:

• An explanation of what the terms mean and that harassment covers all the areas protected by the equality legislation. See our guide on how to prevent discrimination and value diversity.
• Examples of behaviour that could be considered bullying and harassment.
• A statement that bullying and harassment will not be tolerated, and could result in the bully or harasser being subjected to disciplinary action, which may result in dismissal.
• A statement pointing out that bullying and harassment will not be tolerated at work-related events, eg Christmas parties, training courses – even if they are away from the normal workplace.
• Details of the procedures to be followed if bullying and/or harassment occurs, including both informal and formal approaches and relevant timescales that should be linked to your discipline and grievance procedures.
• Assurance that any complaint will be taken seriously, treated confidentially and that employees making complaints will be protected from retaliation.
• Assurance that a thorough and fair investigation of a claim will take place.
• A statement that there will be a right of appeal.
• Sources of guidance and support.

You should also include:

• the name of the person the employee should contact if they are being bullied or harassed
• an alternative name in case this person is unsuitable, for example because they are the employee’s manager

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Dealing with bullying and harassment claims

You should take bullying or harassment complaints seriously as you can be held liable for harassment suffered by your employees at work or at work-related events. Therefore, you should know, and make known to your employees, what approach you will take, for example, by issuing a policy that:

• encourages victims of bullying or harassment to come forward, in a way that provides a way to bypass the bully or harasser
• combines an informal route to complain within a formal procedure to be used when the matter cannot be resolved informally and balances the interests of the victim and the alleged bully/harasser
• tells staff and trains managers as to what they should do if they become aware of someone being bullied or harassed – see the page in this guide on drawing up an anti bullying and harassment policy

Bear in mind that a claim could be malicious – to investigate it thoroughly and fairly you should:

• if possible use an impartial, trained investigator
• consider suspension of the alleged bully or harasser on full pay while the investigation is carried out
• allow both parties to be accompanied to a hearing by a representative of their choice
• make it clear that both parties have the right of appeal

When you are dealing with a case of bullying and harassment, decide carefully what action you are going to take – whether against the complainant or bully/harasser. This could be:

• counselling or training
• an informal or formal warning
• suspension
• transfer – only the guilty party should be transferred  
• dismissal

Trade unions may have a role in cases of bullying and harassment. They can provide:

• support for claims
• guidance and support for the complainant or the alleged bully or harasser
• accompaniment to hearings
• help in eliminating a bullying culture

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CASE STUDY

Here’s how I developed an anti bullying and harassment policy

The Sefton Park Palm House Preservation Trust was formed in 1996 to restore and develop a Grade II listed Victorian palm house in Sefton Park near Liverpool. The Trust raises income through commercial hires of the building, to ensure a sustainable future and support the development of an events programme for visitors. Director Elizabeth-Anne Williams describes how a review led to the introduction of a new policy to prevent workplace bullying.

WHAT I DID

Recognise the need for a formal policy

“We recently reviewed all our policies, to make sure we were legally up to speed and to reflect the growth of the business. We also wanted to build on our culture of openness and good communication.

“One area that hadn’t been properly addressed was bullying and harassment. The management team decided to develop a formal bullying and harassment policy, not because we had a problem in that area, but because we wanted staff to know where they stood.”

Write a policy

“We gathered information from sources like the Acas website and also used a model policy supplied by Tourism HR to get us started. The document sets the scope of the policy upfront and explains why it’s important. For example it aims to give employees a clear sense of what behaviours are acceptable and what are not, to support and protect them in the workplace and to encourage teamwork.

“The policy also includes sections on the principles behind the policy, legal responsibilities and the procedures to be followed in the event of an allegation. For example, it’s important to show how it dovetails with related policies such as disciplinary and grievance procedures.

“We included examples of what constitutes bullying and harassment. We especially wanted to highlight the less obvious forms, such as circulating offensive jokes or consistently setting unachievable deadlines. We also developed a simple flow-chart to show the lines of reporting and procedures at-a-glance.”

Communicate with staff

“For staff to have faith in a bullying and harassment policy you have to involve them and make it more than just a document. We consulted staff about the new policy via team meetings and individual discussions to make sure they understood the principles and procedures involved.

“We’ve made the policy very much a part of our company culture and we look for ways to reinforce the message during day-to-day activities. Having the policy in place has already proved useful. Not only does it support our goal to create an open and team-spirited environment, we’ve actually referred to it formally to help resolve a minor incident.”

WHAT I’D DO DIFFERENTLY

Introduce a policy sooner

“We believe our bullying and harassment policy is thorough and comprehensive and sets clear guidelines for acceptable behaviour. In an ideal world, we would have put it in place from day one.”