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Off the record: Bullying and harassment

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“A member of staff has complained that their manager is a bully. What constitutes ‘bullying’ and what steps should we take to resolve the issue?” By Ranjit Dhindsa, employment partner, Reed Smith


What is bullying?

It is easy to identify extreme forms of discriminatory behaviour as “bullying”, defined as “to persecute or oppress by force or threats”. However, low-level bullying and “harassment”, defined as “to trouble or annoy continually and repeatedly”, can also constitute unlawful behaviour.

Examples of behaviour that may constitute bullying or harassment include:

  • constant, unwarranted criticism or ridicule, particularly in front of colleagues

  • insulting remarks or unfounded threats

  • undermining workers by overloading them with too much work

  • preventing access to promotion opportunities or training

The impact of such behaviour on the workplace and the individuals within it can be severe. It can lead to:

  • poor performance and low productivity

  • low employee moral

  • low staff retention rates

  • high absence rates

  • possible tribunal claims

  • possible damage to reputation

What are the consequences for the employer?

A bullied or harassed employee is entitled to resign and claim constructive dismissal. Employees can also claim unfair dismissal if they believe their dismissal was itself an act of bullying or harassment. They could also bring claims for breach of contract if the employee has breached its own organisational policies, providing those policies form part of the employment contract.

Discrimination law defines harassment as “unwanted conduct” for a discriminatory reason (e.g. sex, race, disability, religion, sexual orientation, age, civil partnership status or gender reassignment), which has either the purpose or the effect of:

  • violating an individual’s dignity

  • creating an “intimidating, hostile, degrading, humiliating or offensive environment” for an individual

HR professionals should be aware that both the organisation and individual managers could be sued under discrimination law.

There are also claims that employees could bring in the civil courts, as opposed to the employment tribunal system, including claims for personal injury (including psychological injury) suffered as a result of the employer’s negligence.

Compensation for claims will vary according to the statutory provision which the victim is claiming under and whether the claim is brought in the employment tribunal or in the civil courts. Claims for unfair dismissal are capped at £58,400 (increasing to £60,600 from 1st February 2007), but there is no limit on damages for discrimination claims or for claims in the civil courts.

What should the employer do?

It is vital that bullying and harassment is identified and dealt with. Employers can be found guilty of condoning bullying behaviour under discrimination legislation if they fail to take any action. In many cases, employees will raise a grievance either formally or informally. But if this doesn’t happen, it is the responsibility of line managers to identify the signs of bullying, such as ill health, failure to participate in meetings, tensions between colleagues, low morale, and so on.

If an employee has raised a grievance, an independent investigation needs to be carried out by an independent and impartial person, which should comply with the statutory minimum dispute resolution steps.

Key points for investigations:

  • Complaints should be taken seriously. Even relatively trivial matters may become the “last straw” in a series of events

  • The investigator must be fair to both the employee making the complaint and the alleged perpetrator

  • All individuals must be allowed to put forward their side of events, and may be accompanied either by a trade union or employee representative, or by a colleague

  • Witnesses must be able to make anonymous statements, if necessary, particularly if they or the victim fear for their own safety

  • The outcome must be given within a reasonable timescale, and individuals informed that they have the right of appeal to a further independent manager

Consider suspending the alleged perpetrator if serious misconduct is involved. The suspension should always be with pay unless there is a specific provision to make it unpaid in the contractual documentation.

If the investigation does find that harassment or bullying has occurred, disciplinary action should be taken.

Legal advice

If the matter results in tribunal or civil proceedings, legal advice should be sought immediately. Possible options could include:

  • defending the claim to prevent damage to the organisation and ensure no precedents are established

  • resolving the complaint either through Acas or mediation

  • considering ways to ensure the claim is withdrawn

Preventative measures

Do as much as possible to prevent bullying and harassment. There should be clear anti-harassment policies in place, visibly backed by management and supported by training, regular reviews and firm use of grievance and disciplinary procedures. Employees should be made aware of a zero-tolerance attitude towards bullying and harassment.

For further information please contact Ranjit Dhindsa at [email protected] or visit www.reedsmith.com

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