Bullying and Harassment in the Workplace
Despite increased awareness in the workplace of issues around harassment and bullying behaviours, this remains a significant issue.
The number of employment tribunal claims lodged between March 2021 and March 2022 citing bullying and harassment, increased by 44 per cent.
So, what is the definition of workplace bullying and harassment?
ACAS describe this as ‘behaviour that makes someone feel intimidated or offended’ and that bullying ‘may be characterised as: offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.
The terms bullying and harassment are often used interchangeably. However, in the Equality Act 2010, harassment has a specific meaning: ‘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’.
In Great Britain, harassment because of someone’s age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity is unlawful under the Equality Act 2010.
Employers are liable for harassment between employees and can also be liable for harassment from a third party.
What are the responsibilities for employers and employees?
All individuals within an organisation have a responsibility to behave in a way that supports an inclusive and tolerant working environment. Everyone needs to play their part in making organisational policy a reality and employers must challenge inappropriate behaviour and take action. Like all policies, it should be regularly reviewed to ensure it remains effective, up to date and understood.
Part of that process is to have a well-developed policy in place that is well communicated to all employees and managers that clearly states the organisation’s commitment to promoting dignity and respect at work. It should be noted that employer’s responsibilities may also 2 extend to work related activities outside of normal working hours such as work parties and outings.
A clear message of zero tolerance to bullying or harassment should be communicated to all and senior leaders should have a clear vision and demonstrate strong values that communicate what a climate of dignity and respect looks like.
All employees should:
- Be made aware, through induction, training, guidance and other processes about their personal responsibilities under the policy and understand the organisation’s commitment to deal with harassment
- Know who to contact if they want to discuss their experiences
- Know how to make a complaint or take out a grievance
It is also important that managers understand their role in addressing inappropriate behaviours and that they have access to support and advice in how to manage any process in a confidential and sensitive manner.
An employer also has a legal ‘duty of care’ to look after the wellbeing of their employees and failure to do this may result in a claim of discrimination and constructive dismissal. Under the Safety, Health and Welfare at Work Act 2005 employers have a legal obligation to protect, so far as is reasonably practicable, the safety, health and welfare at work of their employees.
Employers also have more general duties arising from the nature of the relationship itself as interpreted by the Courts over many years. These include the duty to provide a safe place of work, a safe system of work, a duty to ensure that an employee’s colleagues are competent, and that equipment used in the workplace is safe.
When bullying and harassment is discussed, it is generally assumed to be a top-down issue, ie someone in a more senior position placing undue pressure on someone more junior. However, there are real cases of upward bullying/subordinate bullying (although less frequent) where bullying happens from a more junior employee or a group of employees towards a manager.
Examples of this could include:
- Showing continued disrespect
- Refusing to undertake tasks or follow a reasonable management instruction
- Refusing to engage with managers over work and performance
- Refusing to take part in meetings whether face to face or remote
- Spreading rumours
- Underperforming on purpose to make the manager look unprofessional
This form of upward bullying can be hard to manage and the manager should be able to discuss these issues with their line manager and also assess whether it is limited to their team or a wider, organisational issue.
A manager has the same ability to bring a grievance if they feel that the matter is not being taken seriously or being resolved.
When does ‘robust’ management become seen as bullying?
In a Supreme Court decision of Quigley v Complex Tooling & Moulding Ltd, Fennelly J. held that in order to give rise to a claim for damages “bullying must be (i) repeated, (ii) inappropriate, and (iii) undermining of the dignity of an employee at work” and further that “where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.”
The issue or test is where the threshold lies between workplace conduct that an employee typically finds stressful and upsetting (eg disciplinary procedures) and conduct that constitutes bullying.
Managers should take comfort that they are entitled to make legitimate, reasonable and constructive criticisms of an employee’s work performance or behaviour, including initiating disciplinary procedures or performance improvement procedures. For example, an employee may be repeatedly, but justly, informed that his/her performance falls continuously below required standards – while this may make an employee feel threatened and insecure, it does not indicate bullying by a manager, provided that the manager has acted appropriately. Striving for improvement and giving reasonable assistance is entirely proper.
Importantly, it is not only performance management which, done properly, falls outside bullying, it is also disciplinary processes.
The Courts recognise that “correction and instruction are necessary in the functioning of any workplace” and bullying excludes “reasonable and essential discipline arising from good management…..”
However, managers should always consider whether or not they are aware or intend that their conduct is i) offensive, intimidating, malicious or insulting or ii) an abuse or misuse of power which is likely to undermine, humiliate, denigrate or injure the recipient.
In short, whilst managers should have confidence that they have management choice in handling issues around performance and conduct of their staff, they should always remain professional in their working relationships with employees and treat all those with whom they come into contact, with consideration and respect.
How CBR Business Solutions HR and Employment Law can help
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