How to Deal with a Bullying and Harassment ClaimPosted in : Back to Basics on 28 August 2018
Rob Tubman, Solicitor in the Employment & Incentives team, A&L Goodbody, provides a brief summary on bullying and harassment in the workplace. Rob offers a quick, high-level talk on what bullying and harassment constitutes, what to look for as an employer and how you can go about dealing with it.
He explains employers can be held vicariously liable for the harassment of an employee by a third party and why it is important to have a separate bullying and harassment policy in place. This step by step guide is certainly worth a watch if you are faced with a bullying and harassment claim or if bullying is an issue in your workplace.
So, bullying and harassment in the workplace gave rise to a number of legal issues, and this is mainly because employers are responsible for taking reasonable steps to prevent such behaviour. These are often hard for employers to recognize, however, particularly, as this might not be obvious to colleagues of the individual concerned, that they're being bullied or harassed. And also, there's no statute definition of bullying, so no stand-alone legislation to deal with it.
What Constitutes Bullying?
Examples of bullying can include verbal abuse, so you're looking at persistent taunting, physical violence or violent gestures, or public humiliation of an employee in front of a group. It can also be more subtle. So you're looking at things like imposing unreasonable deadlines on an employee, removing an employee from responsibilities and giving them menial tasks to do, withholding information, and this can be things like excluding them from a meeting or meetings which are relevant to them or their particular role in the business.
And then you can look at harassment. So in relation to employment harassment does have a legal definition, unlike bullying. So harassment is any unwanted physical, verbal, or non-verbal conduct in relation to the protected characteristics. So these are things like sex, race, disability, age, religion, religious belief, or political opinion that has the purpose of affecting or violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them. And this may involve an isolated incident, or it could be a persistent course of conduct.
Vicarious Liability of Employers
And it's important to know for employers that, actually, you can't allow third parties to harass your employees, either. So you're looking here at clients, customers, etc., and if you do allow this to take place, and you don't take steps to stop it, you may be liable. Employers also have a number of implied duties in the employment contract, including a duty to provide a safe and suitable work environment, a duty not to destroy the mutual trust and confidence, and a duty to provide a redress of grievances, should an employee raise one.
Bullying and Harassment Policy
Now, in terms of your policies, you might ask, "Do I need a separate policy?" The law doesn't require an employer to have a separate policy on bullying and harassment because these can be dealt with under a company's grievance procedure. However, many employees find that a separate policy with a more detailed procedure for investigation in recognition of the sensitivity and seriousness of such complaints can be helpful. So case law suggests that this might actually help establish a reasonable steps defence to a claim under the discrimination legislation.
How Do I Deal with a Bullying and Harassment Claim?
In terms of dealing with bullying and harassment claims, you should take these claims seriously as you can be held liable for harassment, as we've already discussed. You should draw up an anti-bullying and harassment policy if you don't already have one, and you should know, and make known to your employees, what approach you'll take under this policy. So, for example, you issue a policy that encourages victims of bullying or harassment to come forward, provides an informal route for them to complain or raise a complaint with a formal procedure to follow, and it balances the interests of the victim and the alleged bully or harasser. It also tells staff and trains managers as to what they should do if they become aware of someone being bullied or harassed, and it allows you to investigate claims thoroughly and fairly.
Bear in mind also that a claim could be malicious, so it's best to investigate it thoroughly and fairly, and to do this you should use an impartial, trained investigator, and possibly consider a paid, precautionary suspension of the alleged bully or harasser, on full pay while the investigation is carried out. But also, you should review any action taken and ensure it's not unnecessarily protracted. You should also make clear that any action taken at this point is not considered disciplinary sanction. You should also allow both parties to be a company to any hearing that takes place, be this by a work colleague or an accredited trade union rep of their choice. And following this, you should carefully decide what action to take, so if there's any substantiated claims of bullying and harassment, decide carefully what action you're going to take and whether the employment contract provides for it, whether against the complainant, or the bully or harasser.
So that was just a quick, high-level talk on what bullying and harassment constitutes, what to look for as an employer and how you can go about dealing with it. So, to recap, have a policy in place. Draw it up, make staff familiar with it, and apply it evenly across all employees, and this should allow you to ensure you can show a reasonable steps defence to any claim that may arise. But also, more generally, if bullying is an issue in your workplace, you should look for the underlying reasons for why it's happening, and then you're best placed to deal with it.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.