Barrister Charles Price discusses what you need to be aware of when creating an anti-bullying and harassment policy.
What the policy is designed to stop
There is no specific UK legislation to protect those who may be suffering, or have suffered, from bullying or vindictive behaviour at work. This does not mean they have no legal protection. It does mean, however, that to get legal protection or redress, they must look to many parts of employment-related law. The most relevant of those sources being:
- Sex Discrimination Act 1975
- Race Relations Act 1976
- Victimisation
- Protection from Harassment Act 1997
- Age Discrimination
When looking at the different sources of law for an easy definition of bullying, one is hampered by ‘legalease’. The definition of harassment, for example, under the Sex Discrimination Act (SDA) 1975 is quite complicated for those wishing to draft concise and easy-to-follow policies.
The principal part of the SDA 1975 s.4A provides that a person subjects a woman to harassment if:
(a) on the grounds of her sex, he engages in unwanted conduct that has the purpose or effect
- of violating her dignity, or
- of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect
- of violating her dignity, or
- of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.
There is an easier route to follow, however, when creating an anti-harassment and bullying policy. The Protection from Harassment Act 1997 does not define harassment but states that harassment of a person “includes causing the person alarm or distress”.
This is an easy test for the employee to prove and is the yardstick for all employers trying to guide staff on avoiding conduct which could be construed as bullying or harassment.
The employees should be warned as to what can constitute bullying. Cases in employment tribunals have shown that a range of behaviour can constitute bullying or harassment:
- Silence – a Mrs Green recently won over £100,000 when staff gave her the silent treatment when she walked in.
- Racist, sexist or Ageist jokes – in the US a man was awarded compensation when workmates referred to him as ‘Uncle Mitty’.
- Shouting, swearing or belittling (Mrs Green had rasberries blown at her).
- Favouring others and leaving people out of social activities.
Of course, the worst type of bullying and harassment should be expressly spelt out as instances of gross misconduct in the disciplinary policy.
This type of training will help prevent workers from behaving in a way that can be construed as bullying. Employers should be aware that it is an implied (un-written term) in all employment contracts that:
“The employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers”.” Wigan Borough Council v Davies 1979 ICR 411.
In other words, the employee has a right not to be bullied in the workplace. Under the Protection from Harassment Act 1997, and other discrimination legislation, compensation is unlimited and employers can often be held liable for the acts of their employers. So apart from wanting to be as fair as possible, the employer has added motivation for introducing the correct training and policies to tackle bullying.
It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.
For more information, please visit: www.charlesprice.net
