Harassment
Discrimination law covers harassment.An employer must not harass a person who is his employee or has applied for employment, in relation to a protected ground. An employer is liable for harassment by his employees unless he took all reasonable steps to prevent it. Harassment may cover a broad range of behaviours and circumstances.
Harassment includes unwanted conduct related to a protected characteristic where the conduct has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. It is harassment if a person engages in unwanted conduct of a sexual nature or conduct which has this purpose or effect.
It is harassment if the employer or another engages in unwanted conduct of a sexual nature that has the above purpose or effect, because of the victim’s rejection or refusal to submit to the conduct where the employer treats that person less favourably than would be so if he had not rejected or submitted to the conduct.
In determining whether the conduct has the above effect, account is taken of the victim’s perception, the other circumstances and whether it is reasonable for the conduct to have this effect.
The protected characteristics are
- age
- sex
- disability
- gender (including gender reassignment)
- marriage and civil partnership
- pregnancy and maternity
- race
- religion or belief
- sexual orientation
Formerly, an employer could be liable if a third party harassed his employees (e.g. a customer or supplier). In this case, the harassment must have occurred on at least two previous occasions. The employer’s liability was based on not having taken reasonable steps to prevent it from happening. Employer Liability for customer harassment has been removed by Regulatory Reform legislation.
Examples of Harassment (Acas Bullying Guide)
Harassment as defined in the Equality Act 2010 is Unwanted conduct related to a relevant protected characteristic, which
has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Behaviour that is considered bullying by one person may be considered firm management by another. Most people will agree on extreme cases of bullying and harassment but it is sometimes the ‘grey’ areas that cause most problems. It is good practice for employers to give examples of what is unacceptable behaviour in their organisation and this may include:
- spreading malicious rumours, or insulting someone by word or behaviour copying memos that are critical about someone to others who do not need to know
- ridiculing or demeaning someone – picking on them or setting them up to fail
exclusion or victimisation - unfair treatment
- overbearing supervision or other misuse of power or position unwelcome sexual advances – touching, standing too close, display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected
- making threats or comments about job security without foundation deliberately undermining a competent worker by overloading and constant criticism preventing individuals progressing by intentionally blocking promotion or
training opportunities.
Bullying and harassment is not necessarily face to face, it may occur through written communications, visual images (for example pictures of a sexual nature or embarrassing photographs of colleagues), email, phone, and automatic supervision methods – such as computer recording of downtime from work, or recording of telephone conversations – if these are not
universally applied to all workers.
Bullying (Acas Bullying Guide)
Acas characterises bullying as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient. The impact on the individual can be the same as harassment and the words bullying and harassment are often used interchangeably in the workplace.
Unless bullying amounts to conduct defined as harassment in the Equality Act 2010 it is not possible to make a complaint to an Employment Tribunal about it.
Employers have a ‘duty of care’ for all their employees. If the mutual trust and confidence between employer and employee is broken – for example, through bullying and harassment at work – then an employee might be able to resign and claim ‘constructive dismissal’, at an Employment Tribunal on the grounds of breach of contract.
Breach of contract may also include the failure to protect an employee’s health and safety at work. Under the Health and Safety at Work Act 1974 employers are responsible for the health, safety and welfare at work of all employees.
For more information visit www.hse.gov.uk.
Workplace Policy (Acas Bullying Guide)
A workplace policy is desirable. This need not be over-elaborate, especially for small firms, and might be included in other personnel policies, but a checklist for a specific policy on bullying and harassment could include
the following:
- statement of commitment from senior management acknowledgement that bullying and harassment are problems for the organisation
- clear statement that bullying and harassment is unlawful, will not be tolerated and that decisions should not be taken on the basis or whether someone submitted to or rejected a particular instance of harassment
examples of unacceptable behaviour - statement that bullying and harassment may be treated as disciplinary offences the steps the organisation takes to prevent bullying and harassment
- responsibilities of supervisors and managers
- confidentiality for any complainant
- reference to grievance procedures (formal and informal), including timescales for action
investigation procedures, including timescales for action - reference to disciplinary procedures, including timescales for action counselling and support availability (see page 9 for further information on counselling)
- training for managers
- protection from victimisation
- how the policy is to be implemented, reviewed and monitored.
Procedures (Acas Bullying Guide)
First, all organisations, should have policies and procedures for dealing with grievance and disciplinary matters. Staff should know to whom they can turn if they have a work-related problem, and managers should be trained in all aspects of the organisation’s policies in this sensitive area.
Employers should investigate the complaint promptly and objectively. The investigation must be seen to be objective and
independent. Decisions can then be made as to what action needs to be taken.
Employers investigating claims of harassment should consider all the circumstances before reaching a conclusion, and particularly the perception of the complainant as harassment is often felt differently by different people.
Having gathered all the evidence employers should ask themselves “could what has taken place be reasonably considered to have caused offence?”
In some cases it may be possible to rectify matters informally. Sometimes people are not aware that their behaviour is unwelcome and an informal discussion can lead to greater understanding and an agreement that the behaviour will cease. It may be that the individual will choose to do this themselves, or they may need support from personnel, a manager, an
employee representative, or a counsellor.
Counselling can play a vital role in complaints about bullying and harassment, by providing a confidential avenue for an informal approach, and perhaps the opportunity to resolve the complaint without need for any further or formal action.
Some organisations are able to train staff from within, others may contract with a specialist counselling service. An independent third person or mediator can sometimes help resolve disciplinary or grievance issues.
Discipline / Grievance Procedure (Acas Bullying Guide)
Where an informal resolution is not possible, the employer may decide that the matter is a disciplinary issue which needs to be dealt with formally at the appropriate level of the organisation’s disciplinary procedure. As with any disciplinary problem, it is important to follow a fair procedure. In the case of a complaint of bullying or harassment there must be fairness to both the complainant and the person accused.
The Acas Code of Practice on disciplinary and grievance procedures sets out principles for handling disciplinary and grievance situations in the workplace. These include:
- informing the employee of the problem
- holding a meeting to discuss the problem
- allowing the employee to be accompanied
- deciding on appropriate action
- providing the employee with an opportunity to appeal.
Employment tribunals are required to take the Code into account when considering relevant cases. Tribunals will also be able to adjust any compensatory awards made in these cases by up to 25% for unreasonable failure to comply with any provision of the Code.
In cases which appear to involve serious misconduct, and there is reason to separate the parties, a short period of suspension of the alleged bully/ harasser may need to be considered while the case is being investigated. This should be with pay unless the contract of employment provides for suspension without pay in such circumstances. A suspension without pay, or any long suspension with pay, should be exceptional as these in themselves
may amount to disciplinary penalties.
Action Taken (Acas Bullying Guide)
The action to be taken must be reasonable in the light of the facts. In some cases it may be concluded that a penalty is unnecessary or that counselling or training is preferable – the individual may now be more able to accept the need to change their behaviour. Where a penalty is to be imposed, all the circumstances should be considered, including: the employee’s disciplinary and general record; whether the procedure points to the likely penalty; action taken in previous cases; any explanations and circumstances to be considered and whether the penalty is reasonable.
Written warnings, suspension or transfer of the bully/harasser are examples of disciplinary penalties that might be imposed in a proven case. Suspension or transfer (unless provided for in the employee’s contract or agreed by the
employee), could breach the employee’s contract if they suffer a detriment by it, for instance a transfer to a different location which means additional expense or a less responsible job.
Any such breach could lead to a claim of constructive dismissal by the affected employee. Where bullying or harassment amounts to gross misconduct, dismissal without notice may be appropriate.
