Bullying and Harassment of any kind should not be tolerated in the workplace. But, what amounts to bullying? What is harassment? How do you as an employer make sure you are providing a safe working environment and that you are not going to be held liable for any bullying which may take place in the workplace.
Bullying includes a wide range of misconduct.
It is often defined as malicious, offensive, intimidating and insulting forms of behaviour. This can include the abuse of power in order to humiliate or undermine a specific individual. Whatever form this takes, it is behaviour that is unwarranted and unwelcome to the individual.
Harassment is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, nationality or any personal characteristics of the individual.
The term harassment can be used to refer to just one isolated incident, or in reference to continuous and persistent abuse. The comments or behaviour must be viewed as unacceptable and demeaning to the individual.
Bullying and Harassment at work can take many forms. Some of the most obvious examples are:
- Managers subjecting their reportees to humiliation and ridicule, make unjustified criticisms, setting impossible deadlines, imposing an excessive amount of work, removing their responsibilities, giving them pointless tasks to carry out, refusing their requests for leave or block their promotion.
- A fellow employee may bully or harass a colleague by engaging in conduct involving threats, abuse, teasing, practical jokes, banter, unwelcome gifts or even, in the worst cases, physical assault.
- Groups of employees may pick on an individual employee.
Bullying and Harassment are not necessarily face to face. They may also occur in written communications, e-mail or by phone. They can also be passive acts such as ignoring someone, excluding them from social events and so forth.
Where Harassment is unlawful conduct under the Equality Act 2010 (and relates to a person’s age, sex, race, disability, sexuality, or religious beliefs), an employee can take a claim to an Employment Tribunal. However, bullying per se cannot form the basis of a complaint to an Employment Tribunal. Instead, if an individual suffers bullying or harassment at work, he or she can bring a claim in the County or High Court if the bullying conduct has caused the employee a psychiatric injury.
One of the leading cases in bullying at work is the Helen Green case. Ms Green was employed by Deutsche Bank Group Services Limited (DB) as Company Secretary Assistant in its secretariat department between 1997and 2003. In November 2000 she was admitted to hospital with a major depressive disorder. In March 2001 she returned to work, initially on a part-time basis, but suffered a relapse of her psychiatric illness, and stopped work again in October 2001. She never returned to work and her employment was terminated on 12 September 2003. Ms Green subsequently issued proceedings against DB claiming damages for personal injury, and consequential loss and damage. She alleged that her psychiatric injury was the result of harassment and bullying by fellow employees for which DB was vicariously liable, and also of the negligent failure of DB’s management and the HR department to take adequate steps to protect her from such conduct. Ms Green also brought claims under the Protection from Harassment Act 1997 (PHA), and for breach of her contract of employment (although the latter was not pursued before the Court however).
Ms Green had a witness who she brought to Court to back up her claims. This is an extract from her statement which describes the kind of bullying conduct which Ms Green had to endure from a gang of 3 women in her department:
“They would make a point of very publicly inviting people out to lunch, but would deliberately exclude Helen. They would stand talking together, but would all go silent when Helen walked past and would then either smirk to each other or burst out laughing. They would stand with their arms folded and stare at Helen like she was a piece of trash. Ms A, in particular, would often stand directly behind Helen’s chair to conduct loud conversations with Mr B and Mr C. It is hard to convey the impact of such behaviour, but when you are faced with it every day, as Helen was, it really starts to affect you. In the months following Helen’s arrival, the behaviour of Ms A, Ms B & Ms C got progressively worse and the incidents of bullying increased. Helen’s work started to go missing from her desk and her name was removed from internal circulation lists. In contrast to this, when Mr D
started work, the women fell over themselves to be friendly to him. Helen always behaved in a very professional manner towards everyone, the women included. She did not rise to their behaviour. I do not know why or how the women chose their “victims”. Helen was an attractive, successful and confident woman, but she was very concerned about successfully completing her six-month probation period. When the women realised they could get away with treating her as they pleased, they spotted a weakness and went for the kill. Helen complained to her Line Manager about their behaviour on several occasions. I know this
because I often booked the meeting with him for her, and afterwards, we would discuss what had been said. He always told her that she should ignore them and get on with her work. I did not agree with this and encouraged Helen to complain more often. I told her that she should go to HR with her complaint but she didn’t want to jeopardise her job during her probationary period.”
The Court accepted that DB owed its staff a duty to take reasonable steps to protect them from foreseeable harm to their physical and mental health and that, in the circumstances complained of it had failed in this duty towards Miss Green, at least for part of the period of which Ms Green complained. The Court was also satisfied that the behaviour of the fellow employees cited by Ms Green amounted to harassment within the meaning of the PHA as it occurred with great frequency, was targeted at Miss Green and was calculated to cause her distress.
She was awarded a significant six figure sum by way of compensation.
Recognising Bullying and Harassment
As an employer you should be able to recognise bullying in the workplace. If you fail to identify it and stop it, you could be held liable under the concept of vicarious liability. Some of the signs you should be looking out for are: symptoms of stress (for example depression, anxiety), a change in the person’s behaviour and prolonged and unexplained periods of absence.
Preventing Bullying /Harassment in the Workplace
Employers need to ensure that their staff know who to go to if they feel they are being bullied. The starting point is an anti-bullying and harassment policy. You should ensure that this policy is circulated and available to all employees of the organisation. You should also make sure that this policy is updated and monitored.
In addition, you may wish to consider putting an induction process in place, so that your new joiners feel comfortable that you do not condone bullying and there are systems in place which will help them address any concerns they may have. You should never assume that your new joiners have not experienced bullying at the workplace. People should be able to feel safe in the workplace.
Unless an employer takes reasonable steps to prevent the behaviour from occurring, for instance by publishing and implementing anti-harassment policies or by providing staff training as mentioned above, an employer will be liable for any act of harassment committed by an employee.
Bullying and Harassment is a complex area of the law, that often involves other claims, in particular claims of discrimination. As with all of these things, prevention is better than cure.
Rachel O’Connell, Director & Solicitor, Just Employment Solicitors.