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Workplace Bullying

The allegations that have emerged in the past week regarding treatment of staff at No 10 Downing Street have brought workplace bullying and harassment into the spotlight. These allegations have been strenuously denied by the Prime Minister and his aides, who say that Mr Brown is not a bully but a “hard task-master” who sometimes gets angry and impatient. The accusations raise the questions of what constitutes bullying in the workplace and what employers and employees should do if such complaints are made and to avoid it happening in the future.

Bullying is offensive, intimidating, malicious or insulting behaviour which, through the abuse or misuse of power, makes the recipient feel vulnerable, upset, humiliated and/or threatened. It can be physical, verbal or non-verbal conduct and can undermine an individual’s self-confidence, competence and self-esteem. Harassment is any unwanted physical, verbal or non-verbal conduct which has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Bullying and harassment can cause huge problems in the workplace. For employees, it can affect their ability to do their job properly. It may lead to feelings of job insecurity, illness, absence from work and even resignation.

For employers, in addition to the effects on workforce morale and productivity, such conduct may result in a claim for discrimination if the subject of the treatment alleges that a reason for it relates to gender, sexual orientation, marital or civil partner status, gender reassignment, race, colour, nationality, ethnic or national origin, religion or belief, disability or age. In addition, a failure to deal with a complaint of bullying or harassment may lead to an employee resigning and bringing a claim for constructive unfair dismissal on the basis that the employer has breached the implied contractual duty of mutual trust and confidence. Employers may also be liable for workplace personal injuries or, if there is a course of conduct amounting to harassment, under the Protection from Harassment Act 1997 (although such claims are very difficult to bring in practice).

ACAS have recommended the following five steps for employers to take to minimise and control bullying and harassment at work:-

(1)    Implement a formal bullying and harassment policy (if one is not already in place) and review it periodically. This does not need to be lengthy or elaborate but should include matters such as a statement of commitment that bullying and harassment is unlawful and will not be tolerated; and reference to the employer’s grievance procedure, investigation procedures and timescales for action. It may also be useful to include examples of bullying (such as ridiculing, shouting, physical threats, inappropriate remarks) and harassment (such as unwanted physical conduct, unwelcome sexual behaviour or suggestions, or offensive or intimidating comments). The policy should also make it clear that bullying and harassment of staff by visitors to the organisation will also not be tolerated, as well as by staff both in the workplace and at social events or functions organised by the employer.

(2)    Set a good example. Encourage employees to discuss any problems they have and ensure senior staff members behave appropriately.

(3)    Maintain fair procedures for dealing promptly with complaints from employees. Complaints will usually be dealt with using the employer’s grievance procedure and, as regards action against those who have behaved inappropriately, disciplinary procedures.

(4)    Set standards of behaviour. For example, publish an organisational statement about the standards of behaviour that are expected so that staff are fully aware of their responsibilities to others and what behaviour is unacceptable.

(5)    Let employees know that complaints of bullying and/or harassment or information from staff relating to such complaints will be dealt with fairly, confidentially and sensitively.

If a complaint is made, it should be investigated fully and objectively, and as soon as is reasonably practicable. Until the matter has been resolved, it may be appropriate to suspend the employee who is the subject of the allegations on full pay. However, such a course of action should not be taken lightly as it can, in certain circumstances, breach the contract of employment with that employee in terms of the implied duty of trust and confidence, which may lead to a possible claim for constructive unfair dismissal.

It may be more appropriate to deal with the matter informally at first. However, if the complaint is too serious to be dealt with informally, or has not been resolved, then a formal grievance process should be implemented. The appropriate course of action against somebody responsible for bullying or harassment will vary depending on the circumstances but may involve training or counselling or, after an appropriate disciplinary procedure, written warnings, suspension or a transfer of the offending person to a different site or office, or dismissal. It should be a disciplinary issue if an employee makes an unfounded complaint for malicious reasons.

Employers should take advice in connection with dealing with complaints in order to ensure that they discharge their obligations to complainants whilst, at the same time, acting in accordance with the employment rights of those subject to allegations.

Employees who feel they are being bullied or harassed should consult their employer’s anti-bullying policies and/or grievance procedures and try to collate evidence to support their complaint. Employees who believe their complaints are not being investigated properly or resolved adequately, or who otherwise seek compensation for the way they have been treated, should consider taking advice on their legal rights themselves.

For more information contact Bethan on 01952 211028 or email her at bethan.jones@lblaw.co.uk