Prevent Bullying and Harassment in the WorkplacePosted in : The Essential Elements of the Employee Handbook on 27 August 2019
In this month's article Leanne Armstrong looks at the legal obligations around preventing bullying and harassment and how you can build a policy to prevent bullying or harassment in your organisation.
Constructing your policy
While many employers choose to draft a policy specifically focused on setting out expectations around bullying and harassment, we encourage you to consider shaping such a policy as a 'Promoting Dignity at Work Policy'. You may find this engenders a more positive approach towards promoting a working environment free from hostile behaviour. This is advisable not only to protect you from legal risk, but also because everyone has the right to work in an environment free from unacceptable behaviour. As with all the other policies within the Handbook we have discussed so far in this series, you should work to create a policy that reflects your values and ethos as an organisation.
Bullying or harassment?
Where there is no legal definition, bullying is generally considered to describe behaviours that are hostile, intimidating, malicious or insulting. It can also include abuse of power. In the workplace this can include things like:
- setting someone up to fail;
- openly criticising or undermining someone in front of their colleagues; or
- overbearing supervision.
It can take the form of physical, verbal or non-verbal conduct, and can include cyber bullying, where harmful or cruel messages or images are shared or posted online.
Legitimate, reasonable and constructive criticism of a worker's performance or behaviour, or reasonable instructions given to workers in the course of their employment, will not amount to bullying on their own.
Harassment, however, has a clear and very specific legal definition. Set out in each of the separate pieces of equality legislation, harassment is defined as unwanted conduct related to a protected characteristic which has the purpose or effect of either:
(a) violating a person's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
In addition, The Protection from Harassment (Northern Ireland) Order 1997 prohibits harassment, saying that "A person shall not pursue a course of conduct – (a) which amounts to harassment of another; and (b) which he knows or ought to know amounts to harassment of the other" and defines harassment within the Order as "references to harassing a person include alarming the person or causing the person distress". Claims under this legislation are brought by way of civil proceedings in either the High Court or County Court. The threshold for a claim of this type, for general harassment, is quite high. In comparison to a claim brought before the employment tribunal under the equality legislation, a course of conduct has to have taken place, and as a result, this type of claim for harassment is relatively unusual.
Potential employment claims
Unacceptable conduct at work which is specifically linked to a protected characteristic may lead to a claim for unlawful harassment under the equality legislation – for example, sexual harassment, racial harassment, sectarian harassment or disability harassment.
General bullying and harassment (whether linked to a protected characteristic or not) may also lead to claims under general employment protections, such as:
- constructive unfair dismissal (where an employee felt the situation at work was so bad that they had no choice but to leave); and / or
- a personal injury claim, (if, for example, the conduct affects an employee to the extent that it causes a medical condition, such as stress or depression).
So, bullying and harassment may give rise to a claim under general employment protections, even if the claimant does not have a protected characteristic. If a claimant does have a protected characteristic, then they may also, or alternatively, bring a claim under equality legislation.
The case of Evans v Xactly Corp Limited demonstrates the need to show that unwanted conduct must be linked to a protected characteristic, in order to bring a claim under equality legislation. In this case, it was found that derogatory comments made about an employee's hair colour, weight and the suggestion that he was a 'pikey' did not amount to unlawful harassment, because they are not 'protected characteristics'.
The Employment Appeal Tribunal also found that the claimant's case failed because he was a willing and active participant in the 'workplace banter' so that the conduct in question did not fulfil the requirement that it must be unwanted.
That said, this can be a fine dividing line. Whilst employment tribunals will be alive to the argument that an employee joining in with untoward behaviour or 'banter' in the workplace may mean that the conduct is not 'unwanted', tribunals also recognise that it can be coping mechanism. This is a particular issue if there is a power imbalance between the complainant and the perpetrator. This was the case in Munchkins Restaurant Ltd v Karmazyn UKEAT 2010, where a group of waitresses brought successful claims for sexual harassment by the owner of the restaurant in which they worked. Evidence showed that the waitresses tolerated the harassing behaviour over many years, as a means of coping with, and limiting, the behaviour of the proprietor. This did not prevent them from bringing successful claims for sexual harassment.
Practical tips for implementing your policy
Having a well drafted policy can help to define the parameters of what constitutes unacceptable behaviour in your workplace, and the steps that employees should take if they are concerned that they have been bullied or harassed.
However, it is not enough to merely have a paper policy which is not actively implemented. Your paper policy is just a starting point and Dignity at Work should form an important part of your workplace culture. Ensuring your policy is kept updated, has visible senior support in your organisation and is clearly promoted is vital. Lines of communication that enable employees to raise concerns without fear of adverse impact are also important. Depending on your organisation's size and resources you may wish to consider alternative reporting lines, such as a designated person in your HR team, or a confidential anonymous telephone line. Some employers may have a nominated Dignity at Work champion, to provide support and guidance for employees who have concerns about bullying and harassment.
Embedding your Dignity at Work policy through regular workforce training has several benefits:
- training line managers on recognising signs of bullying or harassment and how to handle issues or complaints raised by members of their teams can help prevent issues escalating, and equip managers to deal with concerns which have been raised;
- training employees helps to promote a culture where people feel able to raise issues, confident that the organisation will take their concerns seriously;
- training employees also helps to prevent unacceptable behaviour from occurring, by educating your workforce about what type of conduct may be deemed unacceptable – in particular, without training, employees may not be aware of the broad scope of potentially harassing and bullying behaviour; and
- if an employment tribunal claim is brought, proving that you have provided up to date training on the issues may help provide a line of defence. You may be able to avoid vicarious liability for an employee's actions if you can show you have taken all reasonable steps to prevent the behaviour.
A consideration for employers in Northern Ireland in particular is to take account of conduct, symbols or behaviour that may impact on a particular community. In Brennan v Shorts Brother plc (unreported) 1995 (FET) the tribunal stated that "anything which identifies community allegiance needs justification in the workplace," You may wish to factor these considerations into your policy and supporting practices. It is recommended therefore that you ensure your policy is sufficiently tailored to include specific examples of types of behaviour or conduct which could amount to sectarian harassment. For example, display of flags emblems such as union jacks and tricolours, or the display of certain football, GAA or rugby shirts.
Recent and forthcoming developments
With the current high level of media attention focussed on sexual harassment in the workplace, such conduct is now more likely to be challenged than ever, and also increases the prospect of complaints being raised about harassment and bullying more generally. Employers should be mindful not only of the legal risks associated with such complaints, but also the reputational issues which negative workplace conduct or culture can cause.
At the end of 2017, the Equality Commission for Northern Ireland released statistics confirming a 31% increase in the number of complaints of sexual harassment in a 5 year period. In England and Wales, there have been a number of studies undertaken and reports issued in the wake of the #MeToo movement, with the Equalities and Human Rights Commission (EHRC) having committed to developing a statutory code of practice on preventing sexual harassment and the government continuing to consider a range of proposals.
Whilst devolved institutions in Northern Ireland remain collapsed, employers should keep abreast of developments in this area and ensure policies are updated to reflect any changes. Crucially, employers must take active steps to implement and embed the Dignity at Work policy in their organisations.
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.