Legal advice: Workplace bullying
WHAT ARE the responsibilities of the employer with regard to employees being bullied or harassed?
In the past decade there have been numerous reports showing an alarming increase in bullying and harassment, but many people still remain unclear as to what the terms 'harassment' and 'bullying' actually mean, and what employers' responsibilities in the workplace are.
There has been some confusion as to the meaning of the two terms. The ACAS definition of harassment is "unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, sexual orientation, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident."
ACAS defines bullying as "offensive, intimidating, malicious or insulting behaviour, and abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient".
While the definition of bullying does not express bullying as unwanted, it may be taken for granted that no one desires to be
bullied and that their dignity is affected by bullying.
The types of claims that relate to bullying and harassment include:
• Claims for constructive dismissal/breach of contract. Although there are other implied contractual duties relevant to workplace harassment and bullying, the implied duty of trust and confidence is the most widely relied upon by employees seeking to bring constructive dismissal claims. The implied duty goes far beyond simply preventing employers from subjecting employees to offensive, intimidating, humiliating, demeaning or inappropriate conduct and can require employers to investigate complaints or bullying thoroughly and take steps to resolve workplace conflict.
• Claims in negligence. Where an employee has suffered injury as a result of his or her employer's failure to prevent workplace harassment or bullying or indeed as a result of the employer's actions in subjecting him or her to the treatment, subject to certain legal principles, an employee may have a claim in negligence.
• Claims for unlawful harassment on grounds of sex, race, nationality, disability, sexual orientation, religion or belief or age. Such claims may be brought where, on a prohibited ground, the harasser engages in unwanted conduct which has the purpose or effect of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her. There is a defence to any of the claims if an employer can show that it took all reasonable steps to prevent the action complained of from happening.
• Claims under the Protection from Harassment Act 1997. In cases where employees have been harassed or bullied, including situations where there has been no unlawful discrimination, the harassed/bullied employee may be able to bring a claim under this Act. The harassment must take place on more than one occasion. It is also important to note that it has been confirmed that employers may be vicariously liable under the Act for harassment perpetrated by an employee irrespective of whether the employer took reasonable steps to prevent the action occurring.
• Claims under the Health and Safety at Work Act 1974. Employers have a duty to ensure the health, safety and welfare at work of all employees, which includes working conditions such as exposure to bullying and harassment.
Given the numerous avenues open to employees for bringing claims for harassment and bullying, and particularly in light of the new development that an employer could be liable for harassment even if it has taken all reasonable steps to prevent it occurring, it is becoming increasingly important to ensure your employees understand what is and is not acceptable behaviour in the workplace.
It is vital to make sure that as an employer you have a clear and well-communicated policy on bullying andharassment. Monitoring, induction and training are also key preventative methods of reducing the risk of bullying and harassment and a good opportunity to promote the employer's expectations of appropriate conduct.
Perhaps the most useful tip is to have an 'open door' policy so that issues can be dealt with before they erupt into full-blown disputes. Employees should be actively encouraged to air serious concerns about other employees' behaviour. n
