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Employers' Guide to HR

HR Update - Bullying and Harassment

Last Modified on: 2008/05/14 16:12
Last Reviewed on: 2011/03/02 17:04

Welcome to Mayís HR Update

This monthís feature is ìWhat are Bullying and Harassment?î

The consequences of bullying and harassment can be very serious for the employee and the Company.  For the employee, it can cause feelings of anxiousness, humiliation, anger and frustration. This can lead to stress, low self-esteem and possible depression and consequently lead to the employee having high sickness absence records, being signed off by his or her GP and potentially a resignation.  The knock-on effects of persistent bullying and harassment in an organisation can be endless and very destructive for productivity; staff de-motivation, damage to the Companyís reputation and expense litigation costs, to name but a few.  Employers are responsible for preventing bullying and harassing behaviour and are liable for the actions of their employees towards others, taken during the course of employment.

Bullying
Bullying can include:
ï Offensive, humiliating or insulting behaviour by another employee
ï Making an employee feel frightened or demoralised in less obvious ways
ï Being hostile, aggressive and shouting
ï Gossiping maliciously
ï Giving individuals tasks well below their capabilities
ï Physical violence or violent gestures

Bullying is not:
ï Occasionally raising your voice
ï A one-off disagreement
ï Demanding work of an acceptable equality
ï Banter that does not make fun of any individual

Harassment

Harassment is defined as ìengaging in unwanted conduct based on one of the protected grounds (sex, race disability, age, sexual orientation, religion etc) that has the purpose or effect of violating a personís dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him or herî.
Examples of harassment include:
ï embarrassing or offensive jokes or banter
ï unwelcome physical contact or sexual advances

Bullying and harassment are not necessarily face to face. They may occur in emails, phone calls and methods of supervising work for example, recording the number of calls handled, if these are not applied to all workers.

What is the difference between bullying and harassment?

Bullying is repeated inappropriate behaviour which undermines an individuals right to dignity. Harassment is always linked to anti-discrimination Laws and thus will focus on race, gender, ethnic background, religion or belief colour, age, sexual orientation or disability.

Harassment and bullying both involve behaviour which intimidates, threatens, victimises, undermines, offends, degrades or humiliates.

The legal position

The Protection from Harassment Act 1997 makes it a criminal offence to pursue a course of conduct, which amounts to harassment of a individual. Harassment is not defined in the Protection from Harassment Act and so it will be a matter for assessment based on each case. However, there must be a course of conduct in order to bring a claim. This means that there must be at least two incidents representing harassment and the person who is conducting the harassment, should know that it would amount to harassment. While harassment that falls outside the protected areas is not unlawful under anti-discrimination legislation, it is unacceptable in the workplace and could give rise to cases of breach of care or constructive dismissal.

Individuals can be personally liable to pay compensation and can be prosecuted under criminal as well as civil law. Individuals also have a responsibility to behave in ways which support a hostile-free working environment for themselves and their colleagues.  An employer found to be at fault can be ordered to pay unlimited compensation where harassment has occurred, including the payment of fines for injury to feelings.

Since introduction of the Dispute Resolution Regulations in 2004 it has become imperative that employers have a clear formal policy and that employees know to whom, and how, they should make a complaint.  The policy should clearly state the employerís commitment to a zero tolerance approach to both harassment and bullying and promoting dignity and respect at work and extend to any work social gatherings and ìcyber bullyingî via email and internet.  The policy should also state that harassment is a criminal offence, as well as being prohibited under all elements of employment anti-discrimination legislation, and that if such a case is proved, both the harasser and the employer can be convicted and face a prison sentence or a fine of up to £5,000. 

In April 2008, the Sex Discrimination Act was further amended to change the definition of sex harassment and to include for the first time employer liability for third party harassment, for example, clients, suppliers or customers.

Top Tips for dealing with bullying and harassment claims
1. Ensure you have a comprehensive bullying and harassment policy.
The policy should give examples of what constitutes harassment and bullying including harassment by third parties and state the disciplinary penalties for any such activity.  It should explain the informal and formal procedure, and encourage victims to come forward.  The policy should require managers to implement the policy and ensure it is understood and emphasise that every employee carries responsibility for their behaviour. The policy should be communicated so that all employees have been made aware of their rights and responsibilities under the policy which can be done through induction, training and other communications.

2.  Ensure informal procedures are documented
Complaints should be dealt with informally in the first instance. They should be dealt with quickly to reduce embarrassment and avoid disruption to work and working relationships and give the bully/harasser the opportunity to correct their behaviour.


3. Investigate thoroughly and fairly
An employer who fails to investigate has little defence at an employment tribunal. Once a complaint has been lodged, a company should consider suspension of the alleged bully or harasser (on full pay), understand the complaint in full and investigate all allegations and treat the complaint seriously and keep it as confidential as possible. A record of complaints and investigations should always be made. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information.

4. Decide on action
Clear time-scales should be set for the resolution of complaints, taking account of legal limitations. Appropriate action could be counselling, training, some level of warning, suspension, transfer or dismissal of the bully, harasser or malicious claimant. Where bullying or harassment are found to have occurred, make sure that the solution, for example, re-deployment, does not penalise the victim.

5.  Offer advice and counselling
Complainants should be encouraged not to ignore behaviour that makes them uncomfortable, but be supported in taking appropriate action so that the behaviour stops All employees should have access to speak in confidence about an issue they may have. This could be an employee helpline or a nominated person, who may be a trained volunteer colleague, to discuss their experiences in the strictest confidence. This can help complainants decide what course of action to take by exploring their options. The decision to progress a complaint should rest with the individual.

6. Look for trends in attrition rates, exit interview feedback, absenteeism and grievances
Often, potentially brewing problems can appear in exit interview feedback and turnover.  It is always advisable to gain an understanding why staff are leaving to ensure there isnít an over-zealous manager in the ranks.

A recent caseöö.. Hammond v International Network Services UK Ltd
A recent case gives some guidance over what constitutes ìharassmentî. In Hammond v International Network Services UK Ltd, Hammondís nine separate allegations of ëharassmentí in breach of the Protection from Harassment Act 1997 (PHA) were rejected by the High Court.
Hammond claimed that he had been harassed by his manager and he made nine allegations of harassment ranging from claiming to having been excluded from a team meal, his manager had shouted at him in front of colleagues and instructed him to cancel his holiday at short notice. 
Hammond could not produce compelling evidence, the High court ruled that the alleged harassment incidents were not serious enough to satisfy the definition of harassment under the Act, which requires the claimant to establish oppressive and unreasonable conduct. The court rejected Hammondís claim holding that his actions did not amount to harassment under the PHA.  It said that irritating and upsetting conduct will not necessarily breach the Act.  To bring a successful claim under the PHA, the conduct needs to be criminal in nature and have an element of ìreal seriousnessî.

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