Harassment and Bullying in the Workplace
Harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Examples of the types of incidents that fit with this definition could be:
- Treating someone in a negative way because they have relented or refused to relent to such behaviour in the past;
- Conduct of a sexual nature;
- Unwanted physical conduct; including touching, pinching, pushing or grabbing.
- Suggestions for social activity despite clear evidence that these suggestions are unwelcome.
- Sending material that is considered pornographic.
- Sexual advances.
- Remarks against minority groups: racist, sexist, homophobic, ageist, comments or derogatory comments made to any ethnic group or religion;
- Threatening to expose someone as part of the LGBTQ+ Community;
- Offensive verbal or written language;
- Mocking/belittling/mimicking a person(s) disability.
Victims can file a complaint.
Bullying is very similar to harassment but it involves a more offensive, intimidating behaviour that is mostly due to a misuse of power. This can make a person feel vulnerable, upset, humiliated or threatened.
The person exercising power could mean the person is in a position of authority and/or there is a personal strength and power that can coerce a victim through fear and intimidation.
Incidents that fit with the definition of bullying are the following;
- Overbearing and intimidating levels of supervision.
- Inappropriate remarks about someone’s work performance.
It is worth noting that straightforward constructive criticism, or comment about performance that is intended to help, if reasonable, does not fit with the definition of bullying.
What to do if I am being harassed or bullied at work?
There are two routes you can take if you wish to resolve the harassment and bullying you may be facing in the workplace.
You could simply speak directly to the person(s) responsible and make them aware that their behaviour is inappropriate. This may be practically awkward and often there is emotional difficulty in taking this step. It could make the situation worse too.
If so, the best way to raise concerns is to do this through your line manager/HR department who should give advice and assistance for you to resolve the issue formally/informally.
Whoever you notified will need, as far as is possible, to follow ACAS (Advisory, Conciliation and Arbitration Service) guidance taking the following steps;
- Decide who will look into your complaint:
- This needs to be a neutral third party;
- They can pay for an external person to look into it, if they wish possibly someone trained to handle investigations and conflict resolution.
- Get evidence from the following:
- The person complaining;
- Anyone the complaint is about;
- Any witnesses.
- They should then attempt to resolve the complaint informally in the following ways:
- Talking to those involved in private; they are required to speak to the person(s) who issued the complaint, the person(s) who the complaint is about and any relevant witnesses. The goal is to make clear what acceptable work behaviour is and to repair any work relationships; or
- Resolve it in a meeting with everyone involved. They are to take everyone’s views into consideration, hold the meeting in a private place, give enough notice of the meeting and keep notes of any agreed actions; or
- Offer mediation.
If any/all informal steps are not successful, you should go through the formal route.
- Submit the complaint in writing to your line manager. If the concern about bullying or harassment involves your line manager, submit this complaint to someone more senior or the HR department.
- The written complaint should have full details of the conduct;
- The name of the person causing the problems;
- Dates and times the incident(s) occurred;
- The names of any witnesses;
- Any action that has been taken so far to stop this harassment or bullying from occurring.
In the same way as the informal route the ACAS guidance should be followed as far as possible to investigate the complaint:
- Decide who will investigate the complaint;
- The complaint should be investigated by a neutral third party;
- This could be an external person who is trained with workplace investigations.
- Decisions will need to be taken about whether to separate or protect employees;
- This temporary move should be done fairly;
- Ideally the complainant should not be asked to make any changes (unless they have specifically asked to be moved for example) as this may be perceived as punishment for having made the complaint.
- A decision will need to be taken about whether to suspend anyone whilst the investigations are carried out. Suspension should only be actioned if there are reasonable grounds to believe the employee will tamper, or destroy evidence, interfere with witnesses or otherwise adversely affect an investigation, pose a risk to other employees, property, customers or other business interests and/or the employee is the subject of criminal proceedings.
- During a suspension, the ACAS rules state that employees must always receive their full pay and benefits during a period of suspension, unless there is an unambiguous contractual right for an employer to suspend without pay or benefits.
- Employers will need to seek advice if they are suspending an employee without pay.
- Consideration should always be given to reporting serious and particular types of behaviour to the police:
- Physical assault;
- Sexual assault;
- Hate crime;
- Threats of violence.
The person who issued the complaint must be informed of any referral to the police.
- The person who made the complaint should be updated on decisions reached and actions proposed/taken;
- Accurate records should be kept of the evidence gathered and steps taken to resolve or address the complaint.
It goes without saying that all complainants and those accused should be treated with respect and consideration during enquiries and after. No one involved should be subject to unfair treatment as a result of the events investigated.
Failing to follow a fair and balanced process can lead to unhappy outcomes and give rise to claims being brought in the Employment Tribunal or County Court. This is likely to cause uncertainty, time and financial loss, poor publicity and reputational damage for the business.
This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited 2023.