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Bullying and Harassment 09 Mar 2022

What is bullying? 

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 uncomfortable, frightened, 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 bullying behaviour if witnessed, or 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. 

All employers must have a written grievance procedure, which complies with certain minimum standards (see the Acas Code). 

What is harassment? 

Harassment is a type of unlawful discrimination 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, and must be related to one of the relevant ‘protected characteristics (age, sex, disability, gender reassignment, race, religion or belief, or sexual orientation).

It also includes treating someone less favourably because they have submitted or refused to submit to such behaviour in the past. 

A one-off incident can amount to harassment and may include, for example:

  • unwanted physical conduct or "horseplay", including touching, pinching, pushing and grabbing; 
  • unwelcome sexual advances or suggestive behaviour; 
  • offensive e-mails, text messages or comments made on social media;
  • mocking, mimicking or belittling someone.

A person may be being harassed even though they are not the intended target, e.g. racist jokes being made about a different ethnic group can still create an offensive environment for the individuals that heard them.

Is your employer liable for acts of harassment by employees? 

Yes - anything done by an employee in the course of their employment (whether or not it is done with their employer’s knowledge or approval) is treated as having also been done by their employer. It’s worth noting that an employer can try and defend a claim if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act. That said, the responsible employee may also be held personally liable.   Therefore, in discrimination claims you can issue proceedings against both the employer and the individual perpetrator(s).

What is harassment based on association or perception? 

The Equality Act 2010 also covers harassment based on association and perception. You may have a claim for harassment if you are being harassed because you are thought to have a certain protected characteristic when you do not (harassment based on perception), or if you are being harassed because you are linked to someone with a certain protected characteristic (associative harassment).

For example:

  • someone directs a homophobic comment at you on their incorrect assumption that you are gay (perception) 
  • you are subjected to treatment amounting to harassment because you have a disabled child (associative)

What should you do if you are being bullied or harassed? 

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, it may be possible to resolve the problem informally by speaking to the person you feel is bullying/harassing 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, or if their conduct is clearly discriminatory, you should report the matter 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 - the procedure under which you should raise your complaint may depend on the nature of the behaviour.  You should check your employer’s grievance procedure and any separate ‘Bullying and Harassment’ and ‘Equal Opportunities’ policies they may have.  If in doubt, speak to the HR department.  

Your employer will be under a duty to investigate your complaints, and may be able to take steps to end the conduct.  

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. 

What if my complaint isn’t resolved by my employer? 

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 of 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. 

How we can help 

If you need advice, would like to speak to an employment expert or are considering starting any claim, join our legal advice service today where one of our employment specialists can guide and support you through your situation. 

 

Disclaimer: The information and opinions within this guide are meant for general information purposes only.  They are not intended to constitute legal or other professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.
 

Please note that in some circumstances ‘harassment’ may give rise to civil and/or criminal proceedings under the Protection from Harassment Act 1997.  Any such rights and potential action you are able to take are not covered by our service and you should therefore seek separate advice on your situation, e.g. from a trade union, legal expenses insurer, or a local solicitor. 

 

Brendan Donohue Sq Brendan Donohue
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