Most employers and Employees struggle with what is meant by bullying in the workplace. After all it can be a fine dividing line between robust staff and performance management and perceptions of bullying or a team member’s jokes turning from good work camaraderie into one staff member feeling singled out and bullied. Often employers and Employees turn to top London employment law solicitors for advice on bullying in the workplace and what to do about it.
Bullying at work can have an enormous impact on an employee’s health, their absentee record and performance and, if not dealt with, can lead to sick pay payments or employment law claims against employers and if it becomes endemic to high staff turnover.
What is bullying at work?
Bullying is not defined in any employment law legislation. Most employers use the ACAS definition of bullying as a useful guide of what amounts to bullying in the workplace namely:
“Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”
If this definition is included in a staff policy document on bullying it is also helpful to include examples of workplace bullying, such as:
• Making malicious verbal or written comments, including messages on social media, that are designed to humiliate or ridicule;
• Excluding a person, for example, from conversations, team meetings or staff social events;
• An inappropriate and unnecessary level of supervision and authority creating a feeling of intimidation;
• The singling out of an employee by other staff or by a manager, such as unfair work allocation or training or promotion opportunities.
It is often the case that both employers and Employees refer to bullying and harassment but the best London employment law solicitors will advise that there is a big distinction between bullying in the workplace and harassment.
What is harassment?
Top London employment law solicitors emphasise the distinction between bullying and harassment. Bullying in the workplace can happen to anyone, whatever their level of seniority in the company, gender, race etc.
In contrast harassment at work is a form of discrimination against a specific characteristic of the employee that is protected by law. Harassment is unlawful under the Equality Act 2010.
The specific characteristics that are protected by law are:
• Gender reassignment;
• Marriage and civil partnership;
• Pregnancy and maternity;
• Religion or belief;
• Sexual orientation.
It can be difficult for both an employer and employee to sometimes understand if an employee is being “picked on” and bullied or if the inappropriate behaviour is harassment. That is because if the individual being singled has a “protected characteristic”, for example race, that might be the reason for the behaviour towards them in the workplace or the perpetrator of the inappropriate behaviour might have picked on them for reasons entirely unrelated to their protected characteristic.
For employers it is particularly important to consider and assess whether behaviour amounts to bullying or harassment, whereas for Employees their focus is normally on trying to ensure that the behaviour stops, whatever the reason for it.
When does teasing become bullying?
For employers it is sometimes difficult to judge whether the behaviour of a manager or employee is bullying behaviour or not as often the perception of the person carrying out the behaviour complained of is that it is “a bit of banter” or that they have come down hard on the employee because they are not pulling their weight and performing to an acceptable standard. From the point of view of the employee who is being teased, they may not perceive themselves as being bullied but feel stressed or physically unwell resulting in time off work. Other Employees may be very quick to perceive throw away comments as “bullying” making the working environment very difficult for other members of the workforce.
How to stop bullying at work
Top London employment law solicitors recommended that every company has a well-documented bulling and harassment policy in place to identify and resolve any incidents of bullying.
As well as having an anti-bullying policy document employers can:
• Promote a positive staff culture, for example, through encouraging staff socialisation or having a mentoring scheme for new joiners and an induction programme so that all new Employees are aware of the companies anti-bullying policy and the penalties for bullying in the workplace; and
• Ensuring that there is a good human resources support network in place, for example, regular appraisals of staff where individual employee’s workplace concerns can be raised; and
• Educating managers and other Employees about the impact of bullying in the workplace; and
• Ensuring that members of the human resources team are aware of the protected characteristics and the difference between bullying and harassment.
The law and bullying and harassment at work
There is no employment law legislation that defines bullying and outlaws it, unless the behaviour complained of is harassment as a result of the victim’s protected characteristic.
Although there is no law about bullying at work, the top London employment law solicitors advise that employers have an implied duty of care to ensure their staff have a working environment that does not affect their health and safety. If the employer company fails to address bullying at work this could result in a constructive dismissal claim by the employee.
Employers must have and share a well-documented clear zero tolerance bullying and harassment policy with their workforce that aims to identify and resolve any incidents of bullying.
What can an employee do if they are bullied or harassed at work?
An employee may be able to informally resolve matters in situations where the manager or other employee is genuinely not aware of the impact of their words or behaviour on the employee. If the employee cannot resolve the problem informally, they should talk to their mentor or manager or the human resources department. They may also have the option of talking to their trade union representative.
The best London employment law solicitors advise that if those avenues do not work, the employee can make a complaint using their employer’s grievance procedure. If this procedure does not work and they are still being bullied they may be able to bring an employment law claim.
The employers’ grievance process
The top London employment law solicitors recommend that employee grievances should be dealt with promptly, confidentially and by someone who has not had any prior involvement in the complaint.
If the outcome of the grievance is that bullying has occurred, the employer must deal with the person who has carried out the bullying in accordance with the company disciplinary procedure. It can be sensible to take the best London employment law solicitors advice to avoid the aggressor trying to make a claim that the grievance policy was not followed and that they were unfairly dismissed.
What claims can a bullied employee make?
An employee who has been bullied can:
• Make a claim for constructive (unfair) dismissal; and
• If the bullying is harassment because it is linked to a protected characteristic of the employee, then the behaviour might also enable the employee to make a claim of unlawful discrimination against the employer and against the bully; and
• Make a claim for personal injury.
For both employers and Employees, the law on bullying at work is complex and failure to manage staff and allegations of bullying and harassment can result in not only employment law claims, but demotivation and high staff turnover in the workforce. The best London employment law solicitors therefore recommend that rigorous anti-bullying and harassment policies are put in place by employers with ongoing monitoring to ensure that the culture of the workplace does not encourage a bullying or harassing attitude to develop among Employees.
OTS Solicitors are specialist in employment law matters, advising both employers and Employees and providing bespoke employment law advice tailored to the company or individual’s circumstances. For more information on employment law relating to bullying in the workplace or on any aspect of employment law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London employment solicitors.
Posted on: Friday, 28 December, 2018