Bullying and harassment in the workplace continues to be a topic which employers can always learn from as part of a continuous aim to protect their employees from harm and to promote dignity and respect in the workplace for all.
Currently Buckingham Palace has a high profile employment issue with the leak of recent allegations that the Duchess of Sussex may have bullied three staff members and that the palace may have failed to adequately investigate the matters at the time.
Allegations of bullying
Bullying is an extremely serious allegation which must always be addressed fully and straight away. An employee who reports bullying must immediately be advised of the option to have the matter addressed through the Company’s formal grievance procedure and thus invited to put their concerns in writing. Regardless of whether the employee chooses to do so, employers have an implicit duty of care which requires them to investigate the alleged bullying without delay.
If the investigation uncovers enough evidence that there is a reasonable belief the bullying may have taken place, then the accused employee must be invited to attend a disciplinary hearing, following which an appropriate sanction must be determined, if it is found that, on the balance of probabilities, the conduct occurred.
Where the allegations are unfounded, the employer would need to communicate this outcome and then consider the appropriate next steps to help repair the working relationship between the parties. In severe cases this may include professional mediation.
The investigation and any hearing would need to be in line with the Company disciplinary procedure. It may mean that where gross misconduct is alleged, the accused may need to be placed on suspension – or an appropriate alternative to suspension, which prevents the risk of bullying being repeated whilst the process is ongoing.
Employers are well advised to remind both parties about their ability to access an Employee Assistance Programme (EAP) if the employer provides one, as it can be extremely stressful to both speak up about being a victim of bullying and to have been accused of bullying. Offering an EAP is an excellent way of protecting the mental health of employees from issues connected with work and are advocated by tribunals.
Multiple or collective grievances
Where multiple formal grievances are received at the same time, each employee is entitled to have their own grievance process, with each of their allegations investigated and issued with their own separate grievance outcomes.
Where the grievances each allege bullying by the same individual, it is possible to take into account the number (and any similarity in nature) of the complaints received when determining the likelihood of whether the bullying took place, although this should never be the sole factor for reaching a conclusion.
Sometimes employees may choose to group together and to submit a single grievance. In this case an employer may ask them to decide who will represent the group and this person (or persons) may have any progress updates and the formal outcome communicated to them, to share with the others.
It is paramount that line managers, employees, witnesses and indeed any individuals involved in the process understand their personal obligations to maintain confidentiality throughout the entire process. The need for confidentiality is particularly important up until there has been an outcome reached as part of any formal disciplinary process.
Breaches of confidentiality can significantly impair the investigation process and can even cause harm. It can compromise evidence, cause high levels of distress to both the alleged victim and the accused, which can also result in absences and other delays.
Both the Company and specific individuals can be held personally liable for libel and slander claims as well as for breaches of personal data.
Allegations of bullying should be taken seriously and so should any false allegations. Falsified and disingenuous claims of bullying are equally considered to be a serious conduct issue which should be addressed through the Company disciplinary procedures.
Poor handling of allegations
Allegations must be handled in a timely manner, consistently, sensitively and with professional rigour. Additionally, employers should want to handle these allegations with moral integrity. To not handle allegations in these ways suggests the organisation generally does not place due importance on bullying, and may mean individuals are treated unfairly and are not protected from harm in the workplace as required by law.
Poorly handled allegations of bullying can risk a number of 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, the individual may feel forced to resign and this can lead to a constructive dismissal claim.
Most employers do not have a legal obligation to hear a grievance from a former employee, unless there is a contractual obligation. However, they do have a duty of care to existing employees and a legal obligation to protect employees from harm in the work place. So, with that and of course the moral obligation, employers should still at least investigate allegations from former employees in case measures can be put in place to prevent further harm to others, or there are any lessons that can be learned. However, some employers may still choose to follow their normal policies and procedures in respect of former employees to ensure robustness and consistency.
Employers must put adequate preventative measures in place to minimise the likelihood of bullying in the workplace, and should be prepared to act efficiently when an allegation arises.
Policies such as ‘Dignity at work’, ‘Bullying and harassment’ as well as standard grievance and disciplinary policies, are one of the typical ways in which employers can demonstrate a zero-tolerance stance on bullying, to encourage employees to feel safe and aware of how to report it, and to set out how they will address it should it arise.
Of course, there are a number of measures employers can take including, training, regular appraisals, multiple reporting lines, awareness raising activities, communication of how to access support internally and externally such as employee assistance programmes and charities.
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