BULLYING AND HARASSMENT

The advantages of proactively handling bullying and harassment

Employers are legally required to handle bullying and harassment in the workplace. Under the Health and Safety at Work Act, employers have a legal duty to safeguard the health, safety and welfare of their employees. This duty will include protecting employees against bullying and harassment at work.

Additionally, under the Equality Act 2010, employers are prohibited from harassing their employees and they can be found vicariously liable for the harassing behaviour of their employees that is carried out in the course of their employment. To defend against this liability, and a potentially costly compensation award, employers will have to show they have taken reasonable steps to prevent harassment occurring.

As well as the legal implications, organisations who take proactive steps to handle bullying and harassment in their business will experience real benefits. These benefits include:

• greater employee morale

• increased employee engagement

• better employee relations

• increased performance and productivity

• fewer absences related to workplace environment and atmosphere

• reduced risk of tribunal claims.

Although the terms are used interchangeably, bullying and harassment are two separate matters that organisations need to consider.

Understanding bullying

There is no legal definition as to what behaviour will be classed as bullying in the workplace.

• Acas defines bullying as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.

• The Health and Safety Executive (HSE) classifies bullying as negative behaviour which is targeted at an individual repeatedly, and persistently, over a period of time.

Understanding harassment

Harassment is legally defined in the Equality Act 2010 as 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.

There are further definitions of ‘sexual harassment’ where the unwanted conduct is of a sexual nature or where the person is treated less favourably because they have submitted to, or rejected, the unwanted conduct of a sexual nature.

The difficulty with harassment is that it is based on the perception of the individual making a complaint, i.e., whether they thought the unwanted conduct created the required effect, so long as this perception is reasonable to have in all the circumstances. This means all complaints of harassment should be dealt with seriously and not ignored depending on the manager’s own perception of the behaviour.

Common examples of bullying and harassment

Bullying and harassment can take many forms in the workplace, from verbal communication to physical acts or written words. Some common examples of these types of behaviour include:

• maliciously gossiping or insulting colleagues

• managers demeaning junior employees

• unfair treatment

• behaviour of a sexual nature that is unwanted

• spreading critical feedback to others

• behaviour that undermines or ridicules others

• deliberately preventing progression

• intentional isolation of a colleague

• making negative references to job stability and security.

Outline acceptable standards of behaviour and conduct

The difficulty with bullying and harassment is that it can often be difficult to know, for certain, whether a type of behaviour will be seen as bullying or harassing behaviour. To a certain extent, it will depend on the perception of the person on the receiving end of the behaviour, or those who witness it, whilst there is often a grey area between what behaviour is inappropriate and what isn’t.

To ensure bullying and harassment can be handled, you can outline the acceptable standards of behaviour depending on your organisation’s stance on this issue. This will ensure any incidents of inappropriate behaviour can be dealt with whilst reducing the possibility of employees saying they were unaware that their behaviour was not acceptable.

To determine what is and isn’t acceptable behaviour, you can involve employees, managers and any representatives to determine this within the individual business and the sector. A working party or committee could be set up to help with this process, ensuring a wide range of diverse individuals from within the business are included in the group.

You may wish to create a clear statement outlining the behaviours which are deemed to be acceptable and unacceptable within your organisation. Our template ‘List of behaviours that may constitute harassment’ or ‘Inappropriate behaviour policy’ can be tailored for this purpose, or used as a tool to help draw up the standards of behaviour and conduct for your organisation.

Once outlined, and clearly stated, the standards should be communicated to all existing employees and new recruits widely and regularly. The standards can be publicised in different formats, at different times and in different places, to ensure that everyone is notified and the message remains visible. Include the standards, for example, on the staff intranet, in in-house publications and on induction programmes.

Once created and in-use, the standards should not be viewed as a finalised document. Instead, they should be consistently reviewed, updated and refined periodically and when necessary. This may be following a change in the law, a culture change or in response to an incident within your organisation that hadn’t been considered at the implementation stage. The original working party or committee can be included in the review process, or you may wish to set up different parties to allow the review to take place by different groups of workers. Updated standards should be re-communicated to all members of staff, with the latest version replacing all previous documents on any internal sites.

Implementing a policy

You should develop a clear, robust policy which outlines the organisation’s commitment to preventing bullying and harassment, and to handling this where it occurs. Within the policy, you should clearly distinguish between all different forms of harassment.

The overall aim of an anti-harassment and bullying policy should be prevention not cure. The policy is used to ensure all employees understand the types of behaviour that are unacceptable and the consequences of carrying out inappropriate behaviour in the workplace. The policy can cover matters such as:

• definitions of bullying and harassment

• examples of bullying and harassment in relation to protected characteristics

• that harassment may lead to disciplinary action up to and including dismissal

• training

• the use of mediation

• communication

• raising awareness

• reporting concerns and

• the procedure for addressing concerns.

The anti-harassment and bullying policy should be made available to all members of staff. They should be encouraged to read this as part of the induction process and asked to sign a note saying they have read, and understood, the contents of the policy.

Additional documents such as the ‘List of behaviours that may constitute harassment’ and ‘Inappropriate behaviour policy’ can be annexed to the anti-harassment and bullying policy or provided separately.

Reviewing reporting procedures

In most organisations, the standard procedure will be for employees to initially raise their concerns with their immediate line manager. To this end, it is important to have regular one-to-ones with staff and maintain an open door policy. Only where concerns are ignored, or the employee submits an appeal at a later stage of the process, will the employee be able to raise their concerns with a different manager under the normal procedures.

To ensure all concerns regarding bullying and harassment can be handled, you may wish to consider whether this standard reporting procedure is appropriate for your organisation. In some cases, an individual may feel they are being bullied or harassed by their line manager. They are unlikely to wish to raise their concerns to the same individual who is carrying out the inappropriate behaviour, either because they think their concerns will be ignored or this may be seen as an incendiary act which could worsen the behaviour. Where there is no other reporting procedure communicated to employees, they could feel unable to report their concerns to anyone else within the company; leaving this unresolved and unable to be formally dealt with.

A method to resolve this is to ensure the reporting provisions within the organisation’s policy allow employees to either raise their initial concerns with their line manager or with a designated person within the HR department.

Where necessary, confidential reporting procedures such as an email inbox or telephone line can be set up in response to an incident or where there is evidence employees are reluctant or worried about raising their concerns to immediate managers.

Carrying out training

Comprehensive and regular training sessions on bullying and harassment should be carried out for all members of staff. Ensuring these areas are covered in the induction programme will help to prevent bullying and harassment from day one of employment. Training can be repeated on a periodic basis and it will be beneficial to schedule a reminder session following any complaints from staff. The training can cover information such as:

• the organisation’s stance on preventing bullying and harassment

• what behaviour will be deemed as unacceptable

• examples of harassment and bullying

• how to raise concerns about this conduct and

• the consequences of carrying out bullying and harassment at work.

Ensure the training is reviewed periodically to keep it up-to-date and in line with legislation. Your organisation may wish to update the examples contained in the training to keep these current; using recent tribunal cases can help show employees real-life scenarios.

Additionally, managers and supervisors can receive further training covering how to address incidents of bullying and harassment that occur within their team, and how to handle concerns that are raised to them. Managers and supervisors should have a good understanding of your organisation’s anti-harassment and bullying policy to ensure they are able to follow this when necessary. They must also adhere to these closely to show that there is a zero-tolerance policy and to lead by example.

Further communication about the organisation’s stance on handling bulling and harassment can take place through:

• in-house awareness programmes

• employee briefings or updates

• staff representatives

• information on staff notice boards

• in-house newsletters

• the staff handbook and internal policies

• line manager and employee guides.

Tackling cyber bullying

The increasing use of technology and online communication methods has contributed towards a rise in cyber bullying, or bullying online. This is one of the most difficult types of bullying to tackle as it is often hidden on mobile devices or online platforms that employers are not able to visually monitor.

To ensure cyber bullying is handled in your organisation, specific training and awareness should be carried out. The training can cover what forms bullying can take online, how to spot signs that bullying is taking place and where online activity outside of work can be linked to their employment, for example, where messaging groups are set up between colleagues (see 'Carrying out training' above).

Internal policies on bullying and harassment can also be updated to make specific reference to cyber or online bullying (see ‘Implementing a policy’ above). Current policies on email and internet use, or social media use, can also be reviewed and updated to refer to cyber bullying.

Once cyber bullying concerns have been raised, employers can carry out monitoring of online activity to investigate whether bullying has taken place or not. Monitoring employee activity creates a risk that their privacy rights may be breached so there should be advance warning given to employees that monitoring may take place and how this will be carried out.

Dealing with a complaint of bullying and harassment

Your organisation should operate a zero-tolerance policy and approach towards incidents of bullying and harassment; helping to reduce workplace incidents as staff become aware this behaviour will be treated seriously and lead to formal disciplinary action being taken.

All complaints of bullying and harassment should be taken seriously, regardless of the personal perception of the manager receiving the complaint. Once a complaint is received, this should be investigated in a timely manner, including taking statements from any witnesses to the incident. Our checklist for investigating a harassment complaint can be used.

If you find an incident of bullying and harassment has occurred, disciplinary action should be taken in line with your normal disciplinary policy.

In some cases, the behaviour may be suitable to be dealt with informally. The employee will usually have the options of: raising the matter directly with the person and informing them that their behaviour is offensive and must stop; asking a work colleague or representative to accompany them when raising the matter directly with the person; expressing their feelings that the behaviour is offensive and must stop in writing. For any of these options, the discussion should include details about the offensive behaviour, how this made the individual feel and that it is contrary to the organisation’s policy on acceptable behaviour.

Usually, incidents of bullying and harassment will be handled through the formal disciplinary process. As part of any disciplinary sanction imposed, providing additional training for the individual who carried out the bullying or harassing act will help to prevent this occurring in the future.

Keeping the employee informed of the actions being taken to investigate and address their concerns will reassure them that their complaint has been taken seriously, in turn encouraging them to raise any concerns they have in the future. This will help implement a zero tolerance policy as incidents can only be addressed where your organisation has knowledge of these.

Using ‘banter’ as a defence

When carrying out investigations in to complaints of bullying or harassment, or where managers are taking action to address an incident they have become aware of through any other means, it will be common for an employee to say their actions were “banter”.

‘Banter’ is defined as the playful and friendly exchange of teasing, good-humoured remarks. There is, however, a grey line between when a remark is banter and when it is bullying or harassing for the person on the receiving end, or anyone witnessing the exchange.

Where the nature, subject or impact of the remarks means these are included within your organisation’s list of inappropriate behaviour or are outside the acceptable standards of behaviour, banter should not be seen as a defence so long as the employee is aware of your organisation’s stance.

Treating remarks which are categorised as “banter” differently will undermine the organisation’s zero-tolerance stance on bullying and harassment.

It may, however, be impossible to remove all “jokey behaviour” from your organisation and doing so may have a negative impact on staff morale and team relationships. Instead, all employees should be clearly informed of where the line lies between acceptable and unacceptable behaviour in the organisation (see ‘Outline acceptable standards of behaviour and conduct’ above) and appropriate training is carried out to enforce this (see ‘Carrying out training’ above).

Using mediation

Where there has been a breakdown in relationships between employees, this may lead towards an increase in concerns regarding bullying or harassing behaviour.

As part of the process to resolve this matter, employers can use mediation to try and resolve the dispute between the parties. Mediation is a useful method as it helps the parties to talk freely and understand each other’s perspective whilst encouraging them to work towards an agreed resolution. Mediation is a voluntary process so the employees will have to agree to take part and that they will adhere to the agreed outcome where the mediation is successful.

Where mediation is used to resolve the dispute between employees, it will help to reduce the risk of bullying or harassment occurring as the working relationship will be improved by the agreed resolution. The use of mediation to handle bullying and harassment concerns can be outlined in the anti-bullying and harassment policy (see ‘Implementing a policy’ above).

Preventing third party harassment

Although employers are no longer legally liable for acts of harassment carried out by third parties under the Equality Act 2010, this type of harassment may still occur in many organisations and employees can continue to raise their concerns about this. Where these concerns aren’t addressed, it may lead to your employee feeling disgruntled or unsupported which could, in turn, result in them taking formal action such as raising a grievance or resigning from the organisation.

Your organisation can take proactive steps to try and prevent third party harassment taking place. Having clear notices in your organisation, or expressed in contractual documentation, that inform third parties harassment and abuse towards staff will not be tolerated clearly sets out your organisation’s stance on this issue.

Employees who do raise concerns about third party harassment should be handled sensitively. Consideration should be given as to whether they need to be provided with further support in the workplace (see ‘Providing workplace support’ below).

Creating a positive workplace culture

Incidents of bullying and harassment are more likely to occur in workplaces where there is a negative, unengaged or unhappy culture. Negative cultures can quickly cause issues to fester or underlying feelings to be projected through behaviour that is inappropriate.

Creating a positive workplace culture will also help your organisation to handle incidents of bullying and harassment. Firstly, it will make these incidents less likely to occur because a positive culture will boost positive attitude. Secondly, it will make inappropriate behaviour easier to spot, and tackle, as it will not be seen as the ‘norm’ within the business.

There are many methods your organisation could adopt to create a positive workplace culture. These include:

• communicating positively with employees eg focusing on strengths before commenting on weaknesses

• being supportive of employees at work

• showing gratitude and appreciation towards employees

• taking steps to build team spirit and working relationships

• embracing diversity and inclusivity.

As well as taking these steps, organisations can also embrace specific initiatives which are aimed at increasing awareness and tackling bullying and harassment, such as Anti-Bullying Week or Stop Cyberbullying Day. Doing so will positively reinforce your organisation’s stance against these types of unacceptable behaviour whilst encouraging employees to raise their concerns due to their understanding these will be handled appropriately.

Providing workplace support

Employees who have experienced bullying or harassment may feel frightened, distrustful, embarrassed or concerned about continuing in the workplace.

Providing workplace support to these employees will help them feel comfortable at work and ensure their concerns are not leading to greater issues, such as mental health conditions. It will also reduce the risk of adverse effects on the workplace such as an increase in absences or lower productivity.

Workplace support can include:

• providing an employee helpline

• having an Employee Assistance Programme to provide confidential counselling service

• informing employees of external online and phone support

• meeting with the employee periodically to discuss whether they have any concerns.

Any support offered can be outlined in the organisation’s anti-harassment and bullying policy (see ‘Implementing a policy’ above).

Monitoring and reviewing the process

Where harassment or bullying has been found to have taken place, and the perpetrator remains in the same job, regular checks will need to be made to ensure that the harassment has stopped and that there has been no victimisation or retaliation against the victim. The organisation must also ensure that the employee who committed the act of harassment or bullying is not victimised in any way.

Nominate a senior manager to be responsible for monitoring and reviewing the organisation's bullying and harassment policy and the effectiveness of the arrangements and procedures in place to prevent and tackle bullying and harassment.

If a case arises use it as an opportunity to examine any underlying cultural issues as well as the policies and procedures themselves to establish what improvements can be made.