Employment law- Office bullying & Harassment
Bullying and harassment are often terms which are used interchangeably, however they are not the same when it comes to your employment law rights.
What is workplace bullying?
Workplace bullying can be defined as offensive, intimidating, malicious, insulting or humiliating behaviour, or an abuse of power or authority which attempts to undermine an individual or group of employees, and which may cause them to suffer work related stress.
Some of the classic signs of bullying includes being frozen out of meetings which the individual would normally be expected to attend, having people who would normally report to them taken away, not being asked to pub lunches or other office gatherings, being put on an unwarranted performance improvement plan, being given a poor appraisal, being overly critical in emails and verbal communications, and being generally unpleasant and belittling.
What is harassment?
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.
The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. For example, you may have a disability, and claiming harassment after being frequently teased and humiliated about that disability.
Under the Equality Act, employers are also responsible for their staff who harass other employees, but can escape such liability if they can demonstrate that they took reasonable practical steps to prevent the harassment from happening.
Examples of bullying and harassment behaviour
- 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, the 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 can occur at any time, whether in person, in writing, phone or via social media or other online outlet.
What about “the banter excuse”?
A lot of managers use the “banter excuse” as a defence to bullying especially in industries where banter is commonplace- such as the finance and banking sector. Banter is all well and good and an employee cannot complain whilst they are a party to it. It is a different matter however, where someone crosses the line and makes it personal to the obvious distress of the recipient of the banter. In those circumstances, the banter can turn into a case of bullying and harassment. It is not always clear where the line is drawn, but if the employee makes it clear that the other person has gone too far- that is a sensible starting point as to whether that banter has then crossed the line.
What should you do if you are being bullied or harassed in the workplace?
If you are being bullied or harassed at work, you should first consider whether the situation can be resolved informally. For example, you could discuss your concerns with your line manager, an HR representative, union official, or even the person who is bullying you (if you are able to). Generally speaking, the more people who know, the more difficult it is for the bullying to continue. It may even be the case that other colleagues are experiencing a similar treatment, so it can also be helpful confide in certain colleagues as to what is going on.
It is advisable to keep a diary record of every event in which you feel bullied or harassed, as well as any emails and other written communications which demonstrate the unwanted conduct. This evidence will not only be useful when you are required to recall instances of bullying, but can also show that a series of isolated instances (which can often appear ‘trivial’) are actually part of a more serious campaign against you.
Making a claim for bullying & harassment
A claim can be made to the employment tribunal for damages for harassment however it is not possible to make a claim directly for “bullying” on its own. You do, however, have the option of making a claim for constructive dismissal in an employment tribunal for bullying (as you also do so for harassment).
A constructive dismissal claim is made where you can show that your employer is in breach of the implied term of trust and confidence to you as an employee, and that it is untenable for you to continue working as a result. Depending on the nature of the bullying and/or harassment that has taken place, you may have a sufficient enough case to warrant a claim based on constructive dismissal.
There is no qualifying period of employment required to make a claim for harassment, however you do need to be employed for 23 months and 3 weeks (and not have already received notice) in order to qualify in making a claim for constructive dismissal. You would usually be expected to lodge a grievance before resigning.
Professional advice should always be sought before you take any steps to resign and make a constructive dismissal claim if possible.
The start of the process in making a tribunal claim for harassment must start within 3 months (less one day) of the last discriminatory act, in which you must notify ACAS under their early conciliation process. For constructive dismissal claims, the same process needs to be started within 3 months less one day from your last date of employment (this is usually the last date that you have been paid). It is far better to negotiate severance terms, however. Please contact us if you would like further information on this.
Harassment (under the Protection from Harassment Act) 1997
You also have the right to make a claim under the Protection from Harassment Act 1997 through the civil courts, although this is a rare and expensive process. Any claim would need to be brought within 6 years of the last act of harassment. There would also have to be a “course of conduct” which means a sustained campaign-not a one off incident. The threshold for conduct which will amount to harassment under the Act is very high as the courts have ruled that the gravity of such conduct needs to be severe.
You would need to prove that your employer knew or ought to have known that that the conduct amount to harassment.You would also need to prove that your employer knew or ought to have known that that the conduct amount to harassment. The relevant test is “whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”
Examples of claims which can be made through the courts include:
▪ unwanted physical contact;
▪ personal insults, unwelcome remarks about age, dress, appearance, race or marital status, offensive language, gossip, slander;
▪ posters, graffiti, obscene gestures, flags, bunting and emblems;
▪ isolation or non-cooperation and exclusion from social activities;
▪ coercion for sexual favours;
▪ pressure to participate in political/religious groups;
▪ personal intrusion from pestering, spying and stalking;
▪ failure to safeguard confidential information;
▪ shouting and bawling;
▪ setting impossible deadlines;
▪ persistent unwarranted criticism.
Health & Safety at Work
There are also duties for an employer under the Health & Safety at Work Act 1974 which requires an employer to protect the health, safety and welfare of its employees, failing which workers can claim compensation. This includes where you are suffering from work related stress.
Negotiating a exit from your employer with a financial package.
Unless the matter is so serious as to make any ongoing relationship untenable, most will not want to leave without having first secured another job. We have found, however, that many people will decide that they are too stressed to go into work on a day to day basis because of the bullying and they ask their GP to sign them off work due to stress and anxiety. Most GP’s will do this when asked, assuming it is a genuine case.
It is often possible in these circumstances, to negotiate an exit for the employee with a suitable lump sum, which is a sensible option for both employer and employee. Any settlement will include your notice and will usually also provide for a further tax free enhanced payment, together with a job reference. An individual who is on stress leave will simply never return to the workplace where such a settlement is reached-although invariably an employer will insist that you enter into a binding settlement agreement to prevent you from later making any legal claim.
Take professional advice – our success rates.
It is always a good idea to take professional advice from an employment lawyer where you are being bullied, especially as you will be feeling vulnerable. And with the greatest of respect to your employers – they are not going to advise you themselves of your employment law rights. We have a wealth of experience in this area and a very high success rate in securing favourable settlements from employers where the relationship has broken down. We are also willing to consider working on a no win- no fee basis.