Bullying and harassment can often scar victims for life. What more reason, therefore, does an employer need to keep their house in order?
It was with a sense of sadness last month that we were greeted with further news of bullying at the BBC. Rod McKenzie, the editor of Radio 1’s Newsbeat, was removed from his post and handed a month’s leave following a handful of complaints from staff. It came less than a year after the publication of the Dinah Rose Review, initiated in the wake of the Jimmy Savile scandal to assess the corporation’s policies and processes relating to sexual harassment and attitudes regarding the behaviour of staff and freelancers.
Suffice to say, the report made for uncomfortable reading, revealing the anxiety and fear that had taken hold of some employees in the organisation. From aggressive management styles to alleged instances of favouritism, no stone was left unturned. And whilst the number of sexual harassment incidents was small by comparison to the size of the workforce, 37 complaints in six years still made for a rather sorry state of affairs for the Beeb.
Of course, both bullying and harassment are unacceptable forms of behaviour in anyone’s book. Where businesses are concerned though, responsibility lies with the employer. Thus, they can have a detrimental effect if they are not eradicated at the earliest stage possible. Nevertheless, whereas harassment has its own definition enshrined in law, the same cannot be said for bullying. “Most people think of them as being the same thing but harassment has an extra significance in employment law,” says Lloyd Davey, senior associate at law firm Stevens & Bolton. “It is a form of unlawful discrimination when the reason for it relates to a protected characteristic such as age, gender, race, disability or sexual orientation.”
That is not to suggest that victims of harassment must be in possession of one of these protected characteristics in order to make a complaint or claim. “An employee can still sue for harassment on the grounds of what is called a protected characteristic even if that employee doesn’t have the particular characteristic themselves,” Davey explains. “For example, an employee can bring a claim if he is being harassed because a colleague thinks he is gay, even if he may actually be straight.” Nor, indeed, is it always the victim of harassment who raises the issue with an employer. Witnesses of such behaviour may also wish to bring a complaint in the first instance and subsequently a claim if it continues.
Bullying, whilst not technically holding its own legal definition, can still land an employer in trouble if a member of staff resigns, citing their being bullied or being privy to bullying as the reason. “Even if there is no discrimination or straight harassment claim, there is still the potential for them to resign and claim constructive dismissal,” says Davey. “The employee can argue that the employer has breached trust and confidence in the employment relationship, either by bullying that employee or allowing bullying to take place.”
Where bullying and harassment do find common ground is in the harm caused to the individual on the receiving end. As such, the duty of care an employer assumes over their workforce comes into play, along with other legislation pertaining to the general employee-employer relationship. “Bullying and harassment are both unwanted behaviour that makes someone feel offended, humiliated or intimidated,” Davey continues. “It is in every employer’s interest to comply with the legal obligations to employees, whether they are under employment-specific legislation such as the Employment Rights Act 1996 and the Equality Act 2010, or common law duties of care outside of those pieces of legislation.”
Naturally, the last thing an employer wants on their plate is an accusation of bullying or harassment, whether against themselves or a fellow employee. It therefore goes without saying that taking measures to limit their occurrence from the outset is vital. “There is a lot an employer can do to ensure the culture of a workplace doesn’t give rise to bullying and harassment in the first place,” says Davey. “The key thing is that employees need to clearly understand what bullying and harassment is and what action will be taken where bullying and harassment is found to have occurred.”
Sadly though, despite the best efforts at prevention, unsavoury incidents can still occur, or accusations be made. The onus is then on the employer to gather the facts and take the necessary action. If fair process is followed, this should leave the complainant satisfied that the matter has been dealt with in their best interest, and equally relieve the employer from a potentially crippling law suit. “Above all, it is very important that the aggrieved person feels that their complaint has been dealt with honestly and sympathetically, as many legal claims are brought by employees who don’t feel their employer has done enough in the process,” Davey comments.
As far as gathering the evidence is concerned, immediately suspending a suspected bully or harasser is generally considered the most sensible first step. “Suspension is always on full pay and is not a predetermination of guilt,” says Enrique Garcia, consultant at the Employment Law Advisory Service (ELAS). “It is not a punishment. It is ultimately just so you can protect the business and ensure you can do a full, fair and proper investigation without any interference.”
Challenges can certainly arise if a victim does not feel safe in their ability to come forward. However, a solid grievance procedure should mean that things don’t go undetected whilst also serving as a robust deterrent. Of course, the keener-eyed of employers will also be able to identify the tell-tale signs of trouble before it is too late. “Employees who prefer not to report bullying and harassment are likely to suffer lower morale,” says Davey. “They may not be performing to the best of their abilities or they might have a higher than average absence record.”
Indeed, given the harm and tragedy that bullying and harassment so often bring, an employer should have incentive enough to set the record straight from the get-go.