How to deal with bullying and harassment in the workplace

For law firms of all sizes, creating and managing a positive culture amongst your workforce is a key contributor in helping to retain valuable trained staff and can significantly contribute to managing risk. 

Providing legal defence at an employment tribunal can be a significant strain on a firm’s time and attention, as well as putting pressure on a claims experience for those with Legal Expenses insurance.  However the effects of a negative culture spread much more widely. A high staff turnover affects the depth of knowledge and experience across your workforce and dissatisfied colleagues can leave firms open to communication issues with employees, poor levels of engagement and productivity and an unhappy workforce. This can create an inability to address incidents and potential issues effectively and in turn can lead to an escalation in allegations and disputes from both a liability and legal expenses perspective.

We have partnered with HR Solutions to consider bullying and harassment in the workplace, the negative impact this can have and how you can effectively manage it.

Bullying and harassment continues to be a topic which employers can always learn from as part of a continuous aim to protect employees from harm and to promote dignity at work.  Allegations of bullying and harassment must be taken seriously and always addressed fully and promptly.

We will look at how employers can deal with complaints of this nature in a sensitive and safe way.

Definition

Bullying and harassment can be defined in the following ways.

Bullying

Bullying can be defined as persistent behaviour against an individual that is intimidating, degrading, offensive or malicious and undermines the confidence and self-esteem of the recipient.

It can include unwanted physical contact or assault, but also verbal bullying such as insulting or threatening comments, or indeed any comments or actions intended to undermine, belittle, embarrass or humiliate. There is also virtual bullying, which includes distribution of unwanted emails, texts or images published on social media or abusing technology to contact colleagues in an intimidating or malicious manner.

Harassment

Harassment is a form of discrimination under the Equality Act. It has a legal definition in equality law of, “unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating…dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment…". In addition to this type of harassment, the Equality Act 2010 also prohibits sexual harassment which is conduct of a sexual nature which has the same purpose or effect as above. Lastly, it also prohibits less favourable treatment because somebody submitted themselves to or rejected, harassment related to sex or gender reassignment. 

In some cases, employees may also not realise that their behaviour constitutes bullying or harassment and so it is important for everyone to realise that behaviour which may be acceptable to one person may not be acceptable to another. The fact that bullying or harassment may not have been intended, does not mean that it cannot have occurred. 

However, harassment (and bullying) will not have taken place if the effect of the conduct on the alleged victim is wholly unreasonable, particularly in the circumstances of the case. Each situation will have its own set of circumstances, and so what is ‘unreasonable’ is difficult to define, it will be for an employment tribunal to weigh up the facts of the case in determining whether the effect on the victim was reasonable in the given situation.

Somebody who complains of bullying or harassment need not necessarily be the person towards whom the behaviour is directed.  An employee may overhear, for example, comments made to a colleague which they are offended by. They are entitled to raise a complaint about it.

Furthermore, in addition to the victim, someone who witnesses harassment toward another person is also entitled to bring a legal claim in the tribunal, if it had a negative impact on their dignity at work - even if they do not share the characteristic for which their colleague (the victim) was harassed. 

Liability for bullying and harassment

Employers are responsible for any acts of bullying or harassment committed within their workforce. Employees may also be personally held accountable.

Poorly handled allegations of bullying and harassment can risk several claims depending on the nature of the matter, including health and safety and discrimination claims. If either the alleged victim or the accused believes the poor handling of such allegations has led to a breakdown of trust in their employment relationship with the company, that individual may feel forced to resign and this can lead to a constructive dismissal claim.

In the Equality Act 2010, harassment occurs in relation to relevant protected characteristics. An employee can therefore raise claims of harassment at tribunal, if they believe it is connected to:

• Age
• Disability
• Gender reassignment
• Race
• Religion or belief
• Sex
• Sexual Orientation 

Not all forms of protected characteristics are explicitly protected from harassment. For instance, marriage and civil partnership, and pregnancy and maternity are not. This does not mean these groups of employees cannot raise a tribunal claim, because they may have redress under other forms of discrimination-related characteristics (e.g. sex) or other employment related claims.

For claims relating to conduct of a sexual nature, the employee does not need to show a connection or relationship to a protected characteristic.

At an employment tribunal, the judge will be concerned with three things when deciding if harassment has occurred. The effect on the employee by considering the victims perception, the other circumstances of the case and lastly whether it is reasonable for the conduct to have had the effect stated.

Tribunals can take a dim view where a company has failed to follow its own policy, and where the ACAS Code of Practice on Disciplinary and Grievance has not been followed it may make an adjustment to the award by up to 25%.

It is worthwhile to remember that harassment has another definition under criminal law, and so in some cases it is possible criminal offences and charges to be made under the Protection from Harassment Act 1997.

Impact

As discussed, employees may not always realise that their behaviour constitutes bullying or harassment. The fact that bullying or harassment was not intended does not mean that it did not occur. What is acceptable to one person may not be acceptable to another.

When bullying and harassment occurs in the workplace, it can impact on the individual mentally, physically and on their performance at work. From a mental perspective, it can cause psychological ill health such as anxiety, stress, and even panic attacks. It can lead to physical symptoms such as high blood pressure and difficulty sleeping. From a work performance perspective, it can affect an employee’s ability to do their job, including difficulty in concentration, poor decision making, errors in their work, absences or lateness/leaving work early.

Bullying and harassment, and a  bullying culture within a law firm can also have a negative impact on the standard of the legal service clients receive. It is in everyone’s interest to prevent bullying occurring and to take prompt action if it does.

Further Guidance

Get further information and guidance by reading the full article from HR Solutions, which covers the following:

• Grievance
• Investigating claims of bullying and harassment
• Outcome of investigations
• Disciplinary action
• Follow up actions
• Mediation

You can also watch their webinar ‘How to Deal with Bullying and Harassment and download the accompanying webinar slides. 

For more information please read our EB Blog or visit our webpage.