It is not always easy to understand what constitutes bullying and harassment.
There is no actual legal definition of what constitutes bullying in the workplace. However, it is generally accepted to be: offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority but can include both personal strength and the power to coerce through fear or intimidation.
Bullying can take the form of physical, verbal and non-verbal conduct, and may include, for example physical or psychological threats, overbearing and intimidating levels of supervision, and/or inappropriate derogatory remarks about someone's performance.
Employers have an implied duty to take reasonable care of the health and safety of their employees, and to take reasonable steps to provide a safe workplace and a safe system of work. A failure to respond to an employee’s complaint of bullying in a timely manner, or to provide a proper form of redress, may constitute a breach of the implied duty of trust and confidence.
Harassment is unlawful under the Equality Act 2010. To amount to harassment, the conduct must have the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
It also includes treating someone less favourably because they have submitted or refused to submit to such behaviour in the past.
The conduct must also be related to one of the following relevant protected characteristics: age, sex, disability, gender reassignment, race, religion or belief, or sexual orientation.
A one-off incident can amount to harassment.
Harassment may include, for example:
unwanted physical conduct or "horseplay", including touching, pinching, pushing and grabbing;
unwelcome sexual advances or suggestive behaviour (which the harasser may perceive as harmless);
offensive e-mails, text messages or social media content;
mocking, mimicking or belittling a person's disability.
A person may be harassed even if they were not the intended "target". For example, a person may be harassed by racist jokes about a different ethnic group if the jokes create an offensive environment.
Bullying and harassment can be difficult to prove as, often, it is not carried out in the presence of others. As well as this, you may not feel comfortable complaining about a colleague or manager.
If you believe you are being bullied or harassed, you should first try to resolve the problem informally. It may be possible to speak to the person you feel is bullying you. This may work where that person is genuinely unaware of the effect that their conduct is having. If you do not feel able to approach the individual concerned, you should talk to your manager, human resources department, or trade union (if you are a member).
If this does not work, you can make a formal complaint using your employer’s grievance procedure. Your employer will be under a duty to investigate this, and may be able to take steps to end the conduct. Your employer may also have a specific anti-harassment and bullying policy.
You can report a harassment issue you have seen or heard in your workplace, even if it is not directed at you.
If you are treated unfairly because you make, or support, a complaint of harassment, you should seek legal advice immediately as you may have a claim for victimisation.
The rights you have will, in part, depend on the nature of the treatment you have been subjected to and, in most cases, your length of service. For example, there is no standalone claim you can pursue against your employer if you have been bullied. However, if you have over 2 years’ service, you may be entitled to resign and pursue a constructive unfair dismissal claim if your employer fails to properly investigate or deal with any internal complaint you raise. Such claims are notoriously complex and difficult to win. You should therefore seek legal advice before taking the step of resigning - you may be in a better position to negotiate an amicable resolution whilst you remain employed.
Regardless of your length of service, if you believe you have been harassed on the grounds of one of the protected characteristics mentioned above, you may have a claim that you can pursue in the Employment Tribunal. Generally speaking, you will have three months from the date of the alleged discriminatory act(s), or three months from the last in a series of continuing acts, to begin the process of issuing a claim. Before submitting a claim in the Tribunal you first need to engage in ACAS Early Conciliation. In discrimination claims, it is possible to issue against both your employer and the individual alleged harasser.
Discuss your situation with us over the phone with our friendly solicitors who are experienced in employment law and resolving all kinds of issues at work.