According to research by GQ Littler, employment tribunals are experiencing a 45 per cent increase in claims relating to workplace banter.
The problem with banter is its subjective, and a harmless comment to one employee can be seen as degrading and intimidating to another. If comments are found to be on the wrong side of the line, employers can be held liable for the actions of their employees – typically in the form of bullying and/or harassment claims.
Below are some tips for employers dealing with bullying complaints to avoid them snowballing into harassment claims and real reputational damage:
Anti-harassment and bullying policies
Policies focused on culture and behaviour are great tools for preventing bullying and harassment, as they set the standard for employees.
Policies should include definitions of bullying and harassment, an outline of the employer’s legal obligations and the process for raising a complaint. It is also important that these policies highlight that anyone making such a complaint will be protected and supported.
Workplace culture and conduct training
Training gives employees practical guidance for maintaining the behavioural standards expected of them. Culture and conduct training can help employers and employees set boundaries and can clarify where the line between harmless banter and inappropriate behaviour sits.
This training will also help ensure that an organisation’s anti-harassment and bullying policy is implemented efficiently and helps eliminate any questions employees have about adhering to the policy.
Efficient complaint management
Wherever an employee raises a concern about bullying or harassment, it must be taken seriously. When dealing with complaints in their initial stages, it is best practice to talk to the individual who experienced the alleged bullying and harassment to get a proper understanding of what has taken place.
In the first instance, employers can deal informally with complaints by:
providing support and advice;
having a quiet word with the alleged bully; or
implementing informal mediation between the parties.
Taking complaints seriously at their earliest stages and in strict compliance with Acas guidance and any policies in place discharges the employer’s duty of care and promotes a culture where bullying and harassment is not tolerated.
If a complaint escalates to a formal grievance, an independent and impartial investigation is the correct approach.
Where bullying complaints arise in contexts where banter is a workplace norm, it will be difficult for members of the company to undertake an investigation impartially, ie, without the pre-conception of ‘that’s just what it’s like here’. Such pre-conceptions are harmful and can lead to complaints being dismissed.
However, a team of expert independent investigators removes all bias and is suggested for these types of situations. Independent investigators will also be able to guide the employer, free from pre-conceptions, and recommend next steps for dealing with the grievance fairly and lawfully.
Finally, it is important not to end the process without any follow up. Records of complaints and how they were dealt with should always be kept. Employers should also keep an eye on the issue to make sure that any unacceptable behaviour has stopped and importantly that anyone who has made a complaint is not treated unfairly because of it.
Nina Holmes is an employment investigator at Capital Law