Bullying in the Workplace

In this blog, we consider how employers can define bullying, spot bullying behaviour by their staff and take effective steps to address it early.

How to define bullying behaviour?

There is no specific legal definition of bullying, which means it is difficult for employers to clearly understand the behaviours, and patterns of behaviour which are generally understood to amount to bullying.

Employers often adopt a broad definition in their anti-bullying policies, although it is often set out without due regard to the employer’s industry, working environment, culture or practices.

According to ACAS in its guide to harassment and bullying in the workplace, bullying can be described as unwanted behaviour from a person or group that is either:

“offensive, intimidating, malicious or insulting”

“an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”

This is a good starting point for any internal policy, training or guidance. However, most anti-bullying policies would benefit from examples of prohibited behaviours which relate to the employer’s particular business.

How can we spot bullying behaviour?

ACAS makes clear that bullying can be a regular pattern of behaviour or a serious one-off incident. The guidance gives examples such as:

• spreading malicious rumours about someone
• consistently putting someone down in meetings
• deliberately giving someone a heavier workload
• excluding someone from team social events
• consistently undermining a manager
• posting humiliating, offensive or threatening comments or photos on social media

Employers should be on the lookout for patterns of inappropriate behaviour across the business.

The dangers of leaving bullying unchecked:

Although there is no express statutory prohibition against bullying in the workplace, employers can still face legal liability if they do not take care to monitor and address any behaviour which might amount to bullying.

For example, affected employees could bring potential legal claims of harassment and discrimination on the basis of a protected characteristic under the Equality Act 2010, personal injury, and/or constructive unfair dismissal arising from the employer’s fundamental breach of contract in failing to prevent the bullying:

If bullying is related to any of the nine protected characteristics under the Equality Act 2010 it could amount to harassment or discrimination, for which the potential compensation awarded by an employment tribunal is uncapped and can include an award of injury to feelings of up to £56,200 (depending on the seriousness of the behaviour).

An employer has a duty of care under common law to provide a safe and stress-free place of work for all staff. Prolonged bullying can deteriorate an individual’s physical and mental health, and potentially give rise to a personal injury claim. A victim of bullying could be signed off by his or her GP with work-related stress and anxiety, resulting in long periods of absence from work. For an employee to have a claim for personal injury, they must show they have a medically recognised psychological injury or illness. However, the court has found that an employer will only be liable for an employee’s ill health in the circumstances if it is on plain notice of an employee’s stress, or vulnerability to stress, and then fail to address the issue. Compensation may be significant: the 2022 Judicial College Guidelines provide guidelines of average compensation for severe psychiatric damage from stress at work of between £54,830 and £115,730.

Where an employee feels they have no choice but to resign because of bullying, this could give rise to a constructive dismissal claim based on the employer’s breach of the implied term of mutual trust and confidence. Note that an employer is unable to argue in its defence that it has the same style of management as the rest of the relevant industry.

Practical steps:

Employers can focus on mitigating the risks of bullying and harassment in the workplace through a number of key steps:

1. Anti-harassment and bullying policy: Employers should have an anti-harassment and bullying policy in place. This will demonstrate commitment to providing a working environment free from bullying, but also demonstrate the employer’s intention that all staff are treated and treat others with respect. The policy should ideally be non-contractual, allowing employers to keep it up to date. It should cover bullying which occurs at work and work-related events, such as business trips or social functions. The policy should define what the employer considers to be bullying, and it should cover the behaviour of staff, but also of third parties such as customers, suppliers or visitors.
2. Training: Regular and effective training in relation to anti-harassment and bullying is a key component of creating a positive and inclusive workplace culture. The whole workforce should understand the contents of the policy and the employer’s behavioural expectations.
3. Be pro-active: All businesses should ensure that supervisors are proactive in looking out for behaviour which may be considered bullying by the recipient. If negative behaviours are caught at an early stage, then this could prevent formal grievances or legal claims which might arise if intimidating or offensive behaviour is not challenged. As well as the general training recommended above, consider whether specific training in feedback, supervision, delegation or other management skills should be provided for managers.
4. Deal with grievances and complaints promptly: When handling a bullying complaint from an employee who suffered or witnessed alleged bullying, employers should deal with the matter as quickly as possible and in accordance with internal investigation and grievance procedures. Broadly, first talk to the person raising the complaint to understand the issue and what might resolve it. Ensure that you look at the complaint in a way that is fair and sensitive to the person who made the complaint, anyone who witnessed the alleged behaviour, and the person accused of bullying. There will inevitably be sensitivities around confidentiality, the seniority of the individuals concerned, and the likely impact on other employees and the business. A key consideration will also be the necessity of taking disciplinary action against the perpetrator, if it becomes clear that they have behaved in an unacceptable way.

Posted in Bullying and Harassment

Award for Upset and Hurt: Case Law Example

Individuals who bring successful discrimination claims are entitled to be compensated for the upset and hurt they have suffered by way of an injury to feelings award. These awards are separate from, and in addition to, compensatory awards for financial loss which are uncapped.
Awards for injury to feelings have been increased for all claims presented on or after 6 April 2023 and are now over double the original rates.
The new bands are as follows:

It is worth remembering that a claimant does not need to prove that they have suffered any ill health or produce medical evidence in order to get an injury to feelings award – although if they do, they may get a higher figure.

The tribunal will consider the extent to which the victim of discrimination has had their feelings injured and will attribute a financial value to that injury. Awards in the upper band are rare and most awards are in the upper lower and middle bands.

Case Law Example:

Mrs. Messum, a qualified executive HR assistant at Bradford, faced discrimination and mistreatment after becoming pregnant. Despite her qualifications, her boss started assigning her physically, unrelated demanding tasks. She was signed off due to pregnancy-related issues and during sick leave, was asked to attend an urgent investigatory meeting. When she could not attend due to illness, her maternity leave was initiated. Later, she was asked to attend the meeting again, in her own home with an 8-week-old baby and if she did not attend there may be disciplinary action.

After she returned to work, she attended the investigatory meeting, during which she was accused of stealing food from the canteen. She said that her manager had given permission for her to take food home when she had worked late and did not have time to take a break. Despite her explanations, she received a verbal warning and her job duties were changed. Her HR duties were taken off her and she was instead asked to process sales orders and, later on, to do housekeeping duties - including laundry. She resigned, claiming unfair dismissal, pregnancy/maternity discrimination, and harassment.

The tribunal ruled:

1. Unfair dismissal: Company actions breached trust, mishandling investigations and changing her role fundamentally.
2. Pregnancy/maternity discrimination: Demoting her and changing her role was unfavourable treatment due to her condition.
3. Harassment: Repeated unwanted contact during her pregnancy and maternity period was deemed harassment.

The tribunal awarded Mrs Messum £18,000 for injury to feelings, an additional ACAS uplift of 25% (because the employer had not followed the Acas Code of Practice) plus interest amounting to £28,000.

This case underscores persistent issues with pregnancy and maternity discrimination, with a significant percentage of mothers facing mistreatment or job loss. Legal protections exist, but many employers still fall short. It's vital for employers to understand their obligations and treat pregnant employees fairly.

Posted in Bullying and Harassment, Employment Tribunals

Don't Get Caught Out: Discrimination Case Law

We are all aware of how it is against the law to treat someone less favourably due to their gender, race, religion, age etc, but this does not mean that discrimination does not still occur in the workplace. In a recent case, the Employment Tribunal (ET) ruled in favour of an employee who was discriminated against when she was dismissed while on maternity leave for refusing to accept a lesser role with a £20,000 pay cut.

The claimant claimed that when she informed her colleagues of her pregnancy, she was asked how the pregnancy would affect her long-term career goals and the all-male executive team subjected her to "offensive and humiliating" comments, announcing they should "put a wager" on how much weight she would gain during her pregnancy.

During her maternity leave the company went through a restructure which included the dismissal of several executives. The new chief executive excluded the claimant in the restructuring and the claimant discovered from HR that she was no longer on the company email distribution lists or on the new organisational chart and was at risk of redundancy. In response, the company sought to offer her a revised job description for the director of marketing role which was a lower-level role than marketing director and also involved a £20,000 pay reduction. The claimant refused the role and was subsequently made redundant by the company.

The ET upheld her claims of unfair dismissal and maternity discrimination as there was a stark difference in the treatment the claimant received compared to her male colleagues, with the only explanation being due to the fact that she was on maternity leave. The tribunal found that not only was the job description offered to the claimant copied from other websites but also that no such role existed and the retained executives did not have their salaries reduced in order to stay with the company.

Although, a claim of harassment on grounds of pregnancy and maternity cannot be brought under the Equality Act, the ET concluded that the claimant was subjected to a “humiliating and degrading environment” when her colleagues placed a bet on how much weight she would gain during her pregnancy and that this amounted to direct discrimination and the ET awarded her £25,000 plus £5,000 in interest for injury to feelings.

Related Articles:

- Let's Talk About Family Leave

- The Buzz About Carer's Leave

Posted in Bullying and Harassment, Discrimination, Dismissals, Employment Tribunals

How to Avoid Harassment in the Workplace

The recent allegations against Harvey Weinstein in the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.

In the UK, the Equality Act 2010 prohibits sexual harassment, defined as conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples might include unwelcome sexual advances, displaying pornographic images, or sending emails containing material of a sexual nature.

Employers in the UK are responsible for their employees’ actions in the course of their employment, even if such actions are taken without the employer’s knowledge or approval. Employers should be able to demonstrate that all reasonable steps to prevent the employee from taking discriminatory action were taken, in order to build a successful defense.

Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.

There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:

A Bullying and Harassment policy

•  to protect the dignity of employees and to encourage respect in the workplace

An Equal Opportunities policy

• to create a workplace which provides for Equal Opportunities for all staff

A Whistleblowing policy

• to enable staff to voice concerns in a responsible and effective manner.

Transparent and fair procedures throughout

Disciplinary action

• A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.

Provision of on-going training

• At all levels within organisation

Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Bullying and Harassment, Company Handbook, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook