This guidance article on dealing with bullying and harassment is accompanied by a webinar recording which you can watch on demand.
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. It was recently announced that Buckingham palace has a high-profile employment issue with the leak of 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 and harassment are serious allegations which must always be addressed fully and promptly.
We will discuss how employers can deal with complaints of this nature in a sensitive and safe way.
Bullying and harassment can be defined in the following ways.
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 a colleague in an intimidating or malicious manner.
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.
- Harassment can be ongoing or can be a one-off act. It can take many forms, from a joke or ‘banter’ to actual physical violence.
- It may be persistent, or an isolated incident and can take many forms, from relatively mild ‘banter’ to actual physical violence.
- It may be intentional, obvious, or violent, but it can also be unintentional or subtle and insidious.
- It may take the form of nicknames, gossip, intrusive or inappropriate questions and comments can be examples of harassment. It can include unwanted physical and verbal conduct, coercion such as threats of dismissal or loss of promotion or even isolation through deliberate exclusion from communications, groups, or social groups.
- It does not matter whether the alleged harasser possesses the same protected characteristic for which the alleged victim feels harassed.
- The perception of the individual who was allegedly harassed is usually more important than the intention of the alleged harasser.
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 which the behaviour is directed. An employee may overhear for example comments made to a colleague for 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 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 by their employees in the course of their employment. 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 occur in relation to relevant protected characteristics. An employee can therefore raise claims of harassment at tribunal, if they believe it is connected to:
- Gender reassignment
- Religion or belief
- 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 (eg: 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 that effect.
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.
The best way for employers to discharge their responsibility from the misconduct of their employees is to put appropriate measures in place to prevent bullying and harassment from occurring in the first place (such as training, policies, developing a supportive culture, etc), to encourage reporting and to have clear procedures on how allegations will be addressed, and lastly to ensure that allegations are investigated and dealt with fully and without delay and with any appropriate action taken – including actioning any areas of learning to protect employees more fully in the future.
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.
An employee who reports allegations of this nature must immediately be advised of their options. For many employers, this will mean explaining that the matter shall be addressed through the Company’s grievance procedure.
Every employer must have a written grievance procedure under the Employment Rights Act 1996 and should follow the ACAS Code of Practice on Disciplinary and Grievance.
Whilst a grievance policy usually allows for either an informal or formal process, allegations of this nature, particularly those which could be a form of discrimination, are extremely serious and so employees should normally be advised that the complaint will automatically be handled formally so that it is treated with the warranted importance.
If you have received a formal written grievance, then your immediate response is, to invite the employee to a formal grievance meeting to discuss it, without unreasonable delay. At this grievance meeting, the employee has the right to be accompanied either by a work colleague or a certified trade union representative.
The aim of the grievance hearing will be to explore the matters raised further and will seek to obtain as much detail around the relevant facts and circumstances as reasonably possible. This is so that the chair of the meeting can then adjourn the meeting, and a thorough investigation into the grievance can take place.
The grievance hearing may reconvene once an investigation has been conducted. It may then be possible (unless further investigations are required) for the chair of the hearing to reach their decision based on the facts and circumstances of the case. However, before any decision is reached, the aggrieved employee has the right of reply to the evidence obtained through investigations. It is therefore likely that when you reconvene after the investigation, you will be required to allow the grievance meeting to continue to provide them with this opportunity before you then adjourn a final time which would be for the purpose of considering the evidence, reaching a decision, and deciding on the appropriate action to be taken.
Some employers may have a specific bullying and harassment policy. If this policy details fully the entire procedure that will be followed in respect of such allegations, then it may not be necessary to use the grievance policy as this will effectively be a specialised version for the type of incident. However, some employers may have a bullying and harassment policy which sets out the company stance etc, and partially details a procedure in which case the policy usually details that the point at which the grievance procedure will apply.
Investigating claims of bullying and harassment
Here are key pointers of what a good investigation process would look like:
- 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 harassment and may mean individuals are treated unfairly and are not protected from harm in the workplace as required by law.
- The investigation must be in line with your own applicable procedures, adhere to all timescales and steps set out within it.
- Adhere to the timescales within the policy. For a legally fair process, there must not be any unreasonable delays.
- The person investigating must not have been personally involved in the issues that form the basis of the grievance. They must act impartially and with sensitivity to all parties.
- Consideration should be given to the working relationship whilst an investigation is ongoing as well as any potential risks on the back of the allegations made. This could include measures such as temporarily redeploying one of the parties, changing reporting lines or making other managerial arrangements in the short term. As a last course of action, suspension on full pay could be considered. The aim of implementing these measures is to prevent the risk of bullying and harassment being repeated whilst the process is ongoing. When it comes to suspension, this must not be a ‘knee jerk’ reaction due to the seriousness of it. If it is to be introduced, then it is because any of the other measures would not satisfactorily manage the identified risks. How you handle this and determine which party the measure should apply to can be difficult. You do not want to infer any decision is predetermined, nor do you want anybody to feel they are being victimised for raising a concern. Discussion with key parties is important before identifying the most appropriate action and with whom.
- As part of the grievance case file, keep a written record of the measures you take in managing risks whilst the investigation is ongoing. Include what options you considered, and why they were not appropriate to satisfactorily manage the risks, and why the decision taken was the most appropriate.
- Before commencing the investigations, plan the approach. If the matter is to progress further, then the investigation will underpin this and so it is vital that the investigation covers everything that it should and is thorough. Sit down and determine who you believe you will need to speak to, what documentation or electronic evidence will need to be gathered. Keep a record of this action plan in the investigation case file and review it periodically as you work through the investigation…. you may find that new witnesses become identified as you work through the case.
- You are likely to be meeting several people through the course of the investigations. Keep a written audit trail of meetings you set up, witness statements obtained and investigation meetings. We have several template letters available that you can use to issue to witnesses, as well as the accused perpetrator.
- Furthermore, confidentially is essential to the needs of all those involved. Be clear with all parties at the start of their investigation/witness meetings and in any written correspondence, the need for confidentiality. Due to the importance of keeping that matter confidential, make it known that failure on the part of any employee involved will be considered a disciplinary offence.
- When setting up an investigation meeting with the alleged perpetrator, even though you are handling a grievance process for the complainant, their own meeting should be set up just as you would set up a disciplinary investigation. This is because one outcome of the grievance process is for the complaint to be addressed in a formal disciplinary hearing. By setting the perpetrators own meeting up as an investigation meeting as per the disciplinary framework, you will then not need to undertake another investigation when it comes to escalating the issues to the disciplinary process. Instead, you can go straight to setting up the disciplinary hearing and not face claims of not following your disciplinary process.
- Witness statements will need to be made available to both the person making the complaint and the alleged bully/harasser. These are documentary evidence and may form the case file of a future disciplinary. There may be instances, where a witness feels anxious in participating in a process. Although it can be a reasonable management instruction in aiding an investigation to require an employee to participate, you hope that you can seek their agreement and consent through discussion. In exceptional circumstances, you could allow for them to participate providing an anonymous witness statement. The perpetrator and complainant would not know who provided the statement as the witness’s name would be redacted, although you would need to keep an unredacted version on file. When you are having to rely on anonymous witnesses, it is likely that there will be less weight placed on the evidence too. All witnesses must be informed about how their statement will be used, and if the case were to progress to tribunal, their statement will be made available, including unredacted statements from anonymous witnesses.
- For complex and serious allegations, we would recommend having an investigation report which would include a summary and provide accompanying evidence. This report would contain details of what the grievance is, the steps taken in the investigation, the most important evidence, conclusions, and any recommendations.
- Keep people informed on the progress of the investigation timescales. The impact of being involved in a formal process, whether as a complainant, or an alleged perpetrator can be stressful.
- 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.
Outcome of investigations
When the investigation is complete your next step would be to formally invite the employee, who has the grievance to return to a reconvened grievance hearing. In doing so, they will have the right to further contribute to the process by having the right to reply to the evidence gathered. This would include the right to reply to witness statements, and to comment on any other documentary evidence gathered.
Having sought their input into the evidence gathered and you feel satisfied that all reasonable investigations have concluded, then you can call a final adjournment to start the process of reaching a decision. This will be by balancing all the evidence together, including the testimony given in the grievance hearing, from the employee who has raised the grievance.
If there is a finding that bullying and/or harassment is likely to have occurred, then the case file including the evidence gathered must be passed to another manager to consider next steps in line with the disciplinary policy. If it is reasonably concluded from the case file, that a formal disciplinary hearing is required, the accused employee must be invited to attend a disciplinary hearing.
Where no evidence of bullying or harassment has been found then a careful response and explanation must be given to the complainant in the grievance outcome letter, along with a right to appeal. The accused must also be informed of the outcome of the investigation.
Where the investigation finds there is a case to be answered, the accused employee(s) must be invited to attend a formal disciplinary hearing, following which an appropriate sanction must be determined, if it is found that, on the balance of probabilities, the conduct occurred.
The aim of any disciplinary process is to correct behaviour, rather than to punish. If it is concluded that bullying and harassment has taken place, then it does not mean an automatic dismissal. Having determined that on reasonable grounds, it is more likely than not, that the conduct occurred, then you must then determine the most appropriate level of sanction for the circumstances and mitigation provided. Such outcomes will include a first or final written warning, dismissal (with or without notice) or even demotion as an alternative to a fair dismissal outcome, where the policy allows. When defending the fairness of any dismissal, an employer must be able to evidence to an employment tribunal that the decision to dismiss was within the band of reasonable responses.
Follow up actions
Following a grievance (or disciplinary procedure) it may appropriate to take further courses of action. This may be because of either: areas of improvement the Company has identified it could make as an organisation, the need to help repair or improve relations between employees or third parties who may have been involved, identifying areas of development or improvement in certain individuals.
Examples of follow up actions may include; policy reviews, improvements in the work environment, working to minimise fear of reporting and to strengthen reporting lines, managerial or individual awareness training on either bullying and harassment, equality and inclusion, or on how to handle a complaint, implementing an Employee Assistance Programme (if there is not one) or increasing awareness to sources of support, the offer of facilitated meetings between those involved to improve relation and mediation.
What is mediation?
Mediation is a professional process that aims to find a solution to a dispute that is acceptable to all parties. It is usual for a third party to manage the process of mediation by helping the employees involved to explore and understand their differences with the aim of finding a mutually acceptable workable solution.
The ACAS guidance makes clear that both employers and employees should always seek to resolve either disciplinary or grievance issues, but where this is not possible should consider using an independent third party to help resolve the problem.
Mediation works well for issues such as bullying and harassment, where relationships have broken down.
Further HR advice and support
You can watch the recent webinar recording ‘How to Deal With Bullying and Harrassment’, on demand.
Our training courses help your organisation demonstrate compliance with employment law and health and safety legislation. we offer a variety of upcoming courses as well as training courses that can be customised to suit your organisation; find out more at www.hrsolutions-uk.com/training-courses.
Employee Assistance Programme (EAP)
An EAP gives employees the support that they need to help them manage their health and wellbeing issues effectively. It provides an independent, impartial service to help your employees resolve their difficulties more quickly, and minimize the impact on your business. Find out more about the EAP.
HR Solutions are here to help with any employee and workplace issues your business may face. To find out more call us on 0844 324 5840, or contact us online more information.