Bad behaviour in the workplace is increasingly being called out by employees, with reports often hitting the media headlines too. No sector seems to be immune, with the latest stories focusing on high-profile public sector and charity employers. As well as the risk of damage to your reputation there is also the uncapped nature of discrimination claims to avoid.
HMRC has been one of the latest organisations to hit the headlines, with an internal report detailing evidence of bullying and harassment issues. This follows Amnesty International’s culture being labelled as toxic after the suicide of two members of staff.
In the past, some organisations have operated on the basis that bad behaviour is the norm. This stance now poses significant risks for employers.
There is often a fine line between ‘banter’ and abusive behaviour or language. This is exacerbated by the fact that employers are vicariously liable for acts or omissions by employees if they are carried out in the course of their employment. However, employers are also liable for the failure to deal with harassment or bullying. So an organisation with a culture where abusive behaviour is considered to be ‘normal’, and ‘accepted’ will not be a defence against claims. One example of this being challenged is employees at Ted Baker who are taking on the alleged practice of workplace ‘hugging’ between a senior member of staff and colleagues.
Employers can be held vicariously liable for the behaviour of employees, even when the incidents occur outside the workplace, as shown in Bellman v Northampton Recruitment Limited (2018). In this case, the managing director of the company punched a colleague at an ‘after party’. The court held there was enough connection between the MD’s role and the assault for the company to be liable. This is a particularly important point to note for those employers who do have widespread social media and messaging use (whether officially or not) and a culture of after-work activities and social events.
Vicarious liability also extends to organisations using self-employed contractors. In Barclays Bank Plc v Various claimants, Barclays was held vicariously liable for the discriminatory acts of a doctor who was engaged as an independent contractor to carry out pre-employment checks on their prospective employees. The behaviour of contractors and third parties working on your behalf should therefore be reviewed monitored as closely as your employees.
What steps can employers take?
Embedding a culture of zero tolerance of bullying and harassment is the best way to reduce the risks of liability you face as an employer. Start with ensuring you have the relevant policies and procedures and that you train your staff too. Your policies and training should not only establish what your culture is but also set out the required standard of behaviour in and out of work, with examples so staff know what is acceptable.
The best time to establish your culture and train your staff is at inductions, by incorporating a session on your approach. Implementing refresher training for all staff on a regular basis is important too.
Employers should also have a robust social media and communication policy covering all channels which could be used by staff (whether officially or not). This means you have to keep up to date with emerging technology to ensure your processes are fit for purpose.
Pam Loch is managing director at Loch Associates Group