Bullying and harassment at work give rise to a number of legal issues for employers. If employers do not take adequate steps to ensure that the work-place is free from bullying and harassment, in addition to the impact of low employee morale on efficiency/ productivity, there may also be legal risks for the employer associated with:
- liability for discriminatory harassment/ bullying linked to a protected characteristic under the Equality Act 2010;
- vicarious liability for harassment under the Protection from Harassment Act 1997;
- claims for breach of the employer’s implied duties to provide a safe and suitable working environment and not to destroy mutual trust and confidence;
- claims for a breach of the employer’s statutory obligation to safeguard the health, safety and welfare at work of all his employees (Health and Safety at Work Act 1974);
- vicarious liability for other bullying acts committed by one employee against another in the course of employment, e.g. assault, battery, negligence etc.
Top Tips for introducing an anti-bullying and harassment policy:
Consider involving staff in developing it
This may not be practical in many organisations, but where you have a standing representative body or similar, asking for their input into the proposed policy is likely to lend the final policy greater authority and help establish a “reasonable steps” defence to a harassment claim under the Equality Act 2010. This will also assist with ensuring that the drafting of the policy is simple and clear enough for employees to understand. Engaging in discussion with employees regarding the parameters of such a policy is likely to assist with the understanding of bullying and harassment in the workplace for both employees and the employer.
Do not make the policy contractual
This is so that the company can change the policy in the future, or make a decision not to follow the policy in a particular instance, without the need to obtain the employees’ consent. Although the policy should not be departed from without good reason, avoiding a contractual obligation to follow it means that there is no argument that a (potentially serious) breach of contract has occurred by not doing complying with the policy.
Clarify the sort of behaviour that is and is not acceptable in the work-place
Drafting an anti-bullying and harassment policy is the ideal platform for providing clarification for both managers and staff regarding the behavioural parameters of their role and to manage expectations in the work-place. It is important that it is clear in the policy that there is a distinction between bullying/ harassment and legitimate management by line-managers of the staff they are responsible for. This is important both to avoid unreasonable expectations by more junior staff, and to empower line-managers to take action where this is required as part of a genuine performance or conduct management process.
Although some employers prefer to keep policies brief, we find that it is helpful to spend some time giving examples of behaviour that is and is not acceptable (NB: don’t forget to say that the examples are “including but not limited to”). This will assist with the employee’s understanding and may be useful as a reference point if an incident arises which falls within the examples.
Set out protected characteristics and clearly state that any harassment of workers or job applicants related to any of these characteristics will not be tolerated
Setting out the characteristics protected under the Equality Act 2010 is important to help protect employers for claims as part of a “reasonable steps” defence. It is also important in a diverse work-place to ensure that employees have an understanding of the fact what they might view as “banter” is likely to be inappropriate and offensive to others.
Make clear the consequences of bullying/harassment and of making a complaint in bad faith
In order to ensure that employees are “on notice” of the consequences of any bullying or harassing behaviour, and in order to help them recognise the seriousness of it, it is important to be clear that a bullying or harassment could lead to disciplinary consequences up to and including a gross misconduct dismissal.
Do not oblige yourself to take action against perpetrators
Although the employer owes a duty to protect the “victim”, the “perpetrator” also has the right to a fair process. It may not be possible to take a particular course of action because of constraints relating to evidence and/or legal obligations owed to the perpetrator. In some cases there may be good business reasons (whether legal or commercial) as a result of which an employer does not want to be constrained in relation to the action it can take regarding a finding of bullying and/or harassment. The policy wording should therefore avoid suggesting that disciplinary action will necessarily be taken against someone found at fault.
Warn of personal liability
Some employees may not be aware that bullying or harassment could expose them personally to civil action or even criminal proceedings. Highlighting this point is likely to increase compliance with the policy.
Explain the process for making a complaint
The policy should clearly explain how an individual can make a complaint, formally or informally. For practical purposes, and to avoid repetition, the easiest thing might be to cross-refer to the company’s grievance policy and ask victims to use that to make a complaint.
To encourage victims to come forward it is helpful to make clear that all complaints will be treated seriously and that someone complaining will be protected from victimisation. However, in order to manage expectations it may be helpful to point out the need for evidence and the difficulties arising in relation to anonymous complaints. In addition, it may not be possible to maintain confidentiality in all cases, since the employer may have conflicting duties to protect other employees who may be affected by the subject matter of the complaint.
Consider providing external support to victims
Depending on the size of the organisation, it may be possible to provide access to counselling or a worker assistance programme, which may be of significant help to employees in managing work-place stress arising as a result of bullying and/or harassment.
Launching and operating the policy
Some key points we would advise for successful implementation of a policy are:
- providing employees with training about the policy and its contents (particularly for those with management responsibilities);
- informing employees where the policy can be found and providing easy access to it;
- demonstrating that the policy has senior management backing;
- leading by example; and
- ensuring that the policy is seen to be applied where relevant.
As part of this it is often helpful to describe any training/other resources available for employees to help them spot and stop bullying and/or harassment.
Build in a review process
So as to ensure the efficacy of the policy it is helpful to make sure that the policy is reviewed and updated on a regular basis, both with regard to legal changes and in relation to how effective it is in dealing with incidents or complaints of bullying and harassment which have actually arisen within the organisation.