Workplace stress levels are possibly higher than ever in the current economic climate. Employees are concerned about possible redundancies, pay cuts, and having to work increasingly hard because of pressure from management. It is at times like this that we tend to see a rise in the number of allegations of bullying and harassment: tempers fray and things are said and done in the heat of the moment. According to the 2006/07 British Crime Survey, there were an estimated 288,000 assaults and 397,000 threats of violence in the workplace. We would not be surprised if this number increases as a result of the credit-crunch.
It is against this backdrop that new guidance entitled “Preventing Workplace Harassment and Violence” has been published, jointly, by the TUC, the CBI and the Partnership of Public Employers. The guidance provides practical advice on dealing with harassment and violence at work and details the key relevant pieces of legislation and places of support available to employers and employees in the UK. The publication of the guidance is well-timed, as employers often see an increase in the number of instances of harassment and violence over the Christmas period – particularly arising from staff parties or inebriated customers/clients.
UK law has a range of definitions of harassment and violence. The guidance suggests a definition which ought to be easily interpreted by employers and their workforce, and which could be used by employers when updating their handbooks. It recognises that harassment and violence can:
• be physical, psychological and/or sexual;
• be one off incidents or systematic patterns of behaviour;
• be amongst colleagues, between superiors and subordinates, or by third parties such as clients/customers or other members of the public; and
• range from minor cases of disrespect to more serious acts, including criminal offences, which require the intervention of public authorities.
In our experience, employees tend to complain loudest about harassment linked to one of the areas of unlawful discrimination or where the employee may have suffered a personal injury.
The heads of discrimination are sex (including marriage, pregnancy or gender reassignment), race (including colour, nationality, ethnic or national origins), disability, sexual orientation, age or religion or belief. This is because employees can recover compensation based on their loss of earnings arising from the discriminatory harassment (which often results in a constructive dismissal), and there is no cap on the amount of compensation they can recover.
Another potentially costly area is personal injury. In a well-publicised case, Deutsche Bank was ordered to pay a former employee approximately £800,000 in compensation for the psychiatric injury suffered as a result of workplace bullying which included silent treatment, blowing raspberries and excluding her from email chains. The employee was able to demonstrate that she suffered from a stress-induced mental illness as a result of bullying at work (of which Deutsche Bank was aware) and the employer failed to take steps to stop the bullying. The Bank was held to be in breach of the duty of care it owed to the employee because it was reasonably foreseeable that she would suffer a personal injury in the circumstances.
In addition to discrimination and personal injury, the guidance highlights harassment and violence which might amount to breach of health and safety legislation, sector-specific legislation (e.g. transport, emergency services and teaching) as well as criminal acts of harassment and violence.
There is no requirement in law for employers to have a procedure for dealing with workplace harassment and violence, and it is up to each employer to determine what measures, if any, are appropriate. However, well drafted policies can be extremely useful in Employment Tribunal litigation because they help to demonstrate to that the employer takes the issue seriously and that it has taken some steps to try and prevent harassment in the first place. Employers can also reduce the risk of incidents occurring by identifying potential issues at an early stage. The guidance has suggestions for aspects to be covered in written procedures, whilst taking into account factors faced by both large and small employers.
Incidents involving harassment and violence in the workplace tend to attract a lot of attention: from gossiping staff, to the press (trade, local and national), to lawyers seeking compensation and possibly even from the police. It is crucial, therefore, that employers are aware of their obligations and that they introduce procedures and methods of identifying, preventing and managing issues in the workplace. The new guidance (which is available here: http://www.workplaceharassment.org.uk/wp-content/uploads/2009/11/HRE_100_Guidance_report.pdf) provides easily digestible help for employers seeking to achieve that.
This article first appeared on www.freshbusinessthinking.co.uk