Long gone are the days when we might have jumped to the assumption that an incident of bullying was the preserve of the playground.
Recent years have seen a huge rise in the number of allegations of bullying in a professional setting, and as we well know from the current news commentary, the matter of bullying can rear its head in landscapes as diverse as the corridors of political power, to none other than the royal household.
While no manager would ever want to find themselves witnessing allegations of this nature ‘on their watch’, it’s worth acknowledging that whether a company is large or small, has staff working alongside each other or remotely, or has an exemplary record for historic employee retention, situations can, and do, arise.
What is workplace bullying and harassment?
The terms bullying and harassment are often used interchangeably and neither is acceptable in the modern workplace where all employees have the right to be in a safe environment.
Bullying means different things to different people and is not specifically defined in UK employment law. It is often summarised as offensive, intimidating or malicious behaviour, so managers should be continually mindful that their employee might feel they have grounds to cite an issue if, for example:
- They feel disrespected;
- They consider themselves to have been humiliated; and /or
- They have been made to feel fearful or sad.
Harassment is unlawful behaviour under the Equality Act 2010, which is unwanted conduct that is specifically related to a protected characteristic with the purpose or effect of violating an individual’s dignity. CIPD research shows that 15% of employees had experienced bullying over the past three years, with 8% reporting harassment and 4% sexual harassment. The findings show how bullying and harassment can occur across a wide spectrum of behaviour, ranging from extreme forms of intimidation, such as physical violence, to more subtle forms, such as an inappropriate joke or ignoring someone.
How to prove bullying at work
Of course, allegations and human behaviour are complex, so it’s fair to say that one of the biggest issues for a business is where a bullying accusation is made, but there appears to be little outright ‘proof’.
It should be made plain, therefore, that it is NOT actually upon the person complaining to 100% prove that they were bullied, and in what way.
Instead, it is on the business to be able to evidence of whether the bullying was indeed probable or otherwise. This can be achieved by following a robust investigation process that may include speaking to colleagues or other witnesses, reviewing documents, reviewing communications that have happened via email, social media or online communication tools such as Microsoft Teams or Slack and listening without judgement to both parties.
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Criminal cases involving workplace bullying and harassment
Whilst individual employees will be responsible for their actions, the employer may still be held responsible, “vicariously liable” for the behaviour of their employees if they are found to have harassed another employee in the course of their duties.
Employees could bring a civil action against the employer for harassment. This would usually be to claim damages resulting from a breach of contract or as a result of negligence. They may also look to pursue proceedings in an Employment Tribunal for harassment or any other breach of employment law.
Finally, in the most serious situations, an employee may report their situation to the police. For example, some forms of sexual harassment (that could occur in the workplace) automatically break criminal law in England and Wales, and are therefore crimes. These include: stalking, indecent exposure, ‘upskirting’ and any sexual harassment involving physical contact.
Where accused employees are the subject of a police investigation, there will also be a need to undertake an internal process. There is usually nothing stopping you from carrying out an internal process whilst the police investigation is ongoing. In fact, it would probably be desirable to do so as police investigations can take a long time to complete and waiting for its conclusion could be costly to the business. It is important to note that the burden of proof for the police will be significantly higher under criminal law than the requirement of employers who may wish to pursue disciplinary action. This means that it may still be appropriate for the employer to take action even if the police do not. This is an area fraught with complexity and therefore, expert advice should be sought.
Trade union involvement
Trade unions will be recognised and active in some organisations and there may be local agreements in place that define how they will contribute during bullying or harassment situations. In organisations that do not have a recognised trade union, there may still be a need to include a registered trade union representative or work colleague to formal meetings. You should check your policy and ensure that the ACAS code is followed.
The involvement of a trade union representative or work colleague could be beneficial as it will provide either party with a confidential and trusted supporter through what can be a highly emotive situation. There must be no conflict of interest, and many trade unions will arrange to have a different representative for the “victim” and “accused bully.”
It’s for exactly these reasons that leaders of business should always pay due attention to having appropriate policies and procedures in place, which set out the commitment to a culture free of bullying or harassment in any form.
At the same time, it helps for a company to have a clear system for reporting concerns or specific allegations.
Equality, diversity and inclusion policy
There is no specific requirement to have an equality, diversity and inclusion (EDI) policy. At a basic level, an EDI policy can be a statement of intent not to allow discrimination based on protected characteristics and describe unacceptable behaviours.
However, for it to be impactful, it requires more than basic compliance. EDI looks to leverage the diversity in our workforce, contribute to well-being and improve outcomes because everyone can achieve their full potential. An effective EDI agenda brings awareness and action and therefore reduces the chances of bullying and harassment happening. However, if despite this, a bullying or harassment issue does still happen, the employers risks are mitigated because they will be able to demonstrate taking all reasonable steps.
Implicit vs unconscious bias
Implicit bias and unconscious bias refer to our tendency as humans to make judgements based on prejudice and assumptions rather than indisputable facts and data. And we’re all influenced by them whether we like it or not. For example, a manager may decide that an employee who is significantly overweight is lazy, and that is the cause for poor performance. The facts of the situation may actually be that there is an unfulfilled training need.
Dealing with workplace bullying
Employers are responsible for preventing bullying in the workplace and for making it clear it won’t be tolerated. Whether you have an anti-bullying policy or not, there is an implied duty of care owed to employees by their employer, which will include the need to deal with bullying issues.
The range of specific allegations could be as broad as being given excessive workloads with unattainable deadlines to being repeatedly ridiculed, shamed or overlooked.
Therefore, as a top priority, a manager alerted to a scenario of bullying should establish facts while remaining fair to all parties.
The goal is to discover whether there is indeed a case to answer, and then follow a clear procedure to make sure the matter is documented and fully resolved (in whatever direction). Speed is absolutely of the essence in the case of any allegation. For all concerned, it is right and appropriate that the individuals and organisation will all wish to see matters explored and concluded without unreasonable delay. The manager will therefore want to ensure that resources allow for this to happen.
During the process, consider what support can be given to the individuals involved. This may involve some temporary changes to working arrangements or, ultimately in some situations a suspension to enable the situation to be managed. If your organisation has access, sign post the parties to counselling support, your Employee Assistance Programme or other mental health support.
Never underestimate the importance of thorough HR and legal advice. This is not an area to ‘guess’ your way through.
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