The standard advice to employers wishing to avoid bullying claims in the workplace is to have a robust bullying and harassment policy – but as with all policies, it will be key to make sure this is consistently applied and that managers are trained in implementing it effectively.
Bullying and harassment includes any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended. Bullying which is based on one of the discriminatory grounds, the so-called ‘protected characteristics’ – such as race, gender, age, sexual orientation and disability – would be covered by the Equality Act and would be unlawful. The affected employee could bring a claim against the employer but also against the individual who acted in a discriminatory fashion.
Bullying concerns can be raised against colleagues but also in relation to the behaviour of more senior members of staff. It can involve low-level, persistent behaviour which seeks to undermine someone, or a one-off more serious incident. In more serious cases, bullying or harassment may involve a group of people targeting one individual and it may include verbal and written communications, including on social media.
In extreme cases, bullying can also lead to a potential personal injury claim from the affected employee if the treatment in question causes the employee to become ill. In such cases, the employee may also be able to bring a claim under the Protection from Harassment Act 1997 for damages for any anxiety caused by the harassment, and resulting financial loss and criminal proceedings may also be possible.
Tips for employers
When any allegation of bullying is raised, the employer will need to make an initial assessment of whether a formal investigation is necessary. An appropriate investigation into the alleged bullying can go a long way towards mitigating potential risks and establishing the appropriate next steps which need to be taken by the employer.
Bullying can give rise to legal claims if an employer does not deal with the issue properly. However, an investigation and grievance process which is not conducted properly can itself also have a far-reaching adverse impact beyond the investigation and could result in allegations from the original complainant and other participants in the process including, for example, for unlawful discrimination and whistleblowing.
It is worth considering after the initial investigation stage whether a less formal approach may be appropriate. For less serious cases not involving any discrimination aspects, it can be an option for HR to seek to mediate between the parties or to bring in an external workplace mediator who is a specialist at dealing with workplace disputes. In terms of follow-up action, a formal apology and training on effective workplace communication or equal opportunities can sometimes be helpful in resolving the situation in these less serious cases.
In many cases, however, allegations of bullying will need to result in a formal investigation by the employer, followed by a possible grievance process and also disciplinary action against anyone found to engage in bullying behaviour. In some instances, the worst bullies can be successful and profitable for the business and consider themselves untouchable as a result. An appropriate investigation into the alleged bullying can go a long way towards mitigating potential risks and establishing the appropriate next steps which need to be taken by the employer.
The unseen impact of lost productivity, staff sickness absences, HR and other management time and possible legal fees to deal with issues arising as a result of workplace bullying, need to be brought into the mix if the true economic cost of bullying is to be assessed. For employers, the real question is not how to prevent claims by employees, but how to prevent bullying and harassment in the workplace in the first place. That may require a culture change and zero tolerance at the highest levels of management.
While an investigation process can be time-consuming and costly, one of the positive outcomes of a good internal investigation can be an opportunity for an employer to manage the associated risks and ascertain system or management failures which may have contributed to the original bullying. The process provides an opportunity to adapt internal policies and systems to try to reduce the risk of similar bullying behaviour in future.
Bettina Bender is an employment partner at Winckworth Sherwood