12
December
2023

Practical steps for preventing and dealing effectively with bullying and harassment in the workplace

Workplace bullying and harassment is a perennial issue that all employers must deal with. It's therefore crucial that employers take action to prevent incidents of bullying and harassment occurring and to protect the health, safety and wellbeing of their employees. 

Holly Navarro | Employment Solicitor

It is clear that the challenges posed by bullying and harassment are an ongoing issue for employers and HR professionals and unfortunately, this is something that will come up time and time again.

It is therefore crucial that employers take action to prevent incidents of bullying and harassment occurring and to protect the health, safety and wellbeing of their employees.

This can be done through a range of measures, such as having robust, clear and widely understood policies and procedures in place, conducting training on the boundaries of acceptable behaviour, and policing and upholding a zero tolerance approach should employees fail to meet the expected standard of behaviour.

This is now more important than ever with workplace social events most commonly taking place throughout the festive period.

In this blog, we will examine what the law says about harassment and bullying in the workplace, before exploring the upcoming changes to the law and how employers should navigate challenging situations stemming from bullying and harassment when they arise.

The law on harassment 

Harassment in the workplace setting is defined in the Equality Act 2010. Under section 26 of the Act, there are three definitions of harassment:

  1. Harassment related to a relevant protected characteristic;
  2. Sexual harassment; and
  3. Less favourable treatment as a rejecting or submitting to sexual harassment.

To add a bit more detail about each form of harassment:

  1. Harassment related to a relevant protected characteristic

The general definition of harassment only applies to unwanted conduct related to one of the “relevant” protected characteristics.  These are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.  Harassment related to the other protected characteristics under the Equality Act, namely marriage and civil partnership, or, pregnancy and maternity is not recognised.

Harassment can occur when a person engages in unwanted conduct related to one or more of the protected characteristics listed above which has the purpose or effect of either:

  • Violating another person’s dignity; or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Unwanted conduct covers a wide range of behaviour, including (but not limited to) spoken or written words, posts on social media, gestures, mimicry, jokes, pranks, “banter” and physical behaviour towards another person or their property.  Unwanted conduct can also include inaction, where what was wanted was action.  For example, where the employer has failed to prevent or address harassment by a third party.

The word “unwanted” means essentially the same as “unwelcome” or “uninvited” but it does not mean that express objection must be made to the conduct before it is deemed to be unwanted.

It’s also important to note that unwanted conduct can be flagged by another person and not necessarily the person being harassed.

The Equality and Human Rights Commission provides the following example of harassment:

In front of her male colleagues, a female electrician is told by her supervisor that her work is below standard and that, as a woman, she will never be competent to carry it out. The supervisor goes on to suggest that she should instead stay at home to cook and clean for her husband. This could amount to harassment related to sex as such a statement would be self-evidently unwanted and the electrician would not have to object to it before it was deemed to be unlawful harassment.

  1. Sexual harassment

Sexual harassment occurs where both:

  • A person engages in unwanted conduct of a sexual nature; and
  • The conduct has the purpose or effect of either violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Unwanted conduct of a sexual nature can cover verbal, non-verbal or physical conduct including:

  • Sexual comments or jokes
  • Sexual gestures
  • Showing sexually graphic images
  • Suggestive looks or prolonged staring
  • Propositioning and sexual advances
  • Intrusive questions about a person’s private or sex life
  • A person sharing details about their own sex life
  • Making promises in return for sexual favours
  • Sending sexually explicit messages or emails
  • Unwelcome or unwanted touching such as hugging, kissing and massaging.

The unwanted conduct does not have to be directed at the individual raising the complaint.  For example, male employees downloading pornographic material at work could amount to sexual harassment against female colleagues.

  1. Less favourable treatment as a rejecting or submitting to sexual harassment

The third type of harassment occurs when someone is treated less favourably because they submitted to, or rejected unwanted conduct of a sexual nature, or unwanted conduct which is related to sex or to gender reassignment which has the purpose or effect of either:

  • Violating another person’s dignity; or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Under this type of harassment, the initial unwanted conduct may be committed by the person who treats the worker less favourably or by another person.

For example, a female employee is told by a senior member of staff that she will be eligible for a pay rise if she goes on a date with him.  The employee refuses and is subsequently denied the promotion she applied for, even though she was the best candidate.  The employee believes that her refusal to go out with the senior member of staff influenced this decision.  This would amount to harassment of this type.

This is a summary of the core strands of harassment under the current law but there is refinement to the law due to come into force next year, summarised as follows.

The Worker Protection (Amendment of Equality Act 2010) Act

The Worker Protection (Amendment of Equality Act 2010) Act which received Royal Assent on 26 October 2023 will come into force in October 2024.  This was introduced to make provision in relation to the duties of employers and the protection of workers under the Equality Act 2010 and is set to build out the law on harassment in the workplace.

Employers can currently defend themselves from liability for harassment if they can demonstrate that they have taken all reasonable steps to prevent it, however, the Act builds on this potential defence to a claim of harassment by introducing a new duty on employers to take “reasonable steps” to prevent sexual harassment occurring in the first place.  A failure to take preventative action could result in an award of compensation being increased by up to 25% in a successful harassment claim.

Many have questioned the effectiveness of the Act, as it has been watered down throughout its journey through Parliament.  The third party harassment element was dropped and the strictness of the employer duty has also been amended, meaning that employers must take “reasonable steps” rather than “all reasonable steps”.

Before the Act becomes into force, we can expect the EHRC to produce a new statutory code for employers.  With this in mind, employers should reassess their whole approach to harassment in the workplace by revisiting their policies and ensure that acceptable standards of conduct are clearly communicated to all employees.

The law on bullying

Under UK law, there is no legal definition of “bullying” at work, leaving workers unable to take direct action based on a simple allegation of workplace bullying.

As it stands, individuals experiencing bullying at work would have to rely on either a claim for constructive dismissal in the event that they are obliged to resign from their position as a result of the offending conduct, or a discrimination claim, provided the treatment they have experienced can be linked to a protected characteristic.

However, positive steps are being taken to give workers increased protection through the Bullying and Respect at Work Bill, which will help break the cycle of workplace bullying.

You can read more about this in our previous blog –  Bullying and Respect at Work Bill.

Practical steps to prevent and deal with harassment and bullying in the workplace 

Policies, procedures and staff training 

As a starting point, employers should have clear, effective policies in place.  Such policies should cover anti-harassment and anti-bullying as well as dignity at work.  All policies should be regularly reviewed and updated.

Employers should also have clear and accessible procedures that explain how individuals should report harassment and bullying.

As a minimum, these should detail:

  • Who is responsible for handling complaints;
  • How complaints will be investigated; and
  • What the procedure is for handling complaints.

Staff training is also central to creating an inclusive workplace and this should be conducted by a manager, HR lead or external trainer who has specialist training in this area.  This may differ depending on a worker’s seniority in the business, but the training should cover:

  • What behaviours are expected of staff in the workplace;
  • How to report inappropriate conduct;
  • Details of the relevant policies and where people can go for additional support;
  • How to report cases of bullying and harassment where employees have identified inappropriate behaviour in the workplace;
  • Active bystander training, educating workers on how to intervene and challenge harassment or bullying;
  • The different forms of harassment related to different protected characteristics;

Awareness

Alongside having clear policies and procedures for handling cases of bullying or harassment, employers must also demonstrate that they are implementing these policies consistently across all levels and areas of the business.

Policies should be accessible to all staff and this can be achieved through leveraging internal communication channels such as:

  • Email updates
  • The intranet
  • Welcome or induction packs
  • Staff notice boards
  • One to one meetings
  • A staff handbook

It’s also advisable to regularly invite employees to share feedback on this through staff surveys.  Workers at all levels must be aware of the standards expected of them and understand how to report instances of harassment and what the associated procedure would be.

Detecting harassment and/or bullying

Employers must make it clear what individuals should do if they detect workplace harassment or bullying affecting their colleagues.  Some typical signs that an employee may be experiencing bullying or harassment include (but are not limited to):

  • An employee being quieter than usual or becoming withdrawn
  • Usual standard of work slipping
  • Unpredictable moods, for example, an individual becoming more emotional than usual
  • Calling in sick more often

Managers should be aware of these warning signs and check in with the employee to see whether they are OK.

Dealing with complaints of harassment and/or bullying in the workplace

Employers and HR managers should handle complaints of workplace bullying or harassment sensitively and investigate these as soon as possible.  If the situation escalates and the employer is found to have not handled the complaint appropriately, this is likely to aggravate any potential risk and liability the employer may face.

In addition, mismanaged complaints could be detrimental to staff morale and the employer’s reputation.

If a complaint is upheld through the internal process, the individual who raised the complaint should be told what action has been taken by the employer to address this, including action taken to address the specific complaint and any measures taken to prevent a similar event happening again in the future.

Our expert employment team are on hand to support organisations in ensuring their bullying and harassment policies are thorough, compliant and place employee wellbeing at their core.

For more information or to understand how you could enhance your internal policies and procedures, why not get in touch with the team via hrhub@primaslaw.co.uk.

We also host quarterly breakfast events through our HR Hub, where we share insight and advice on a range of “hot” topics.  You can join our mailing list here.

 

 

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