Rhian Radia, a Partner and Head of the Employment team at Bishop and Sewell, looks at the issues faced by employees and employers, and suggests that businesses should not only look to create an environment and culture of respect, but also keep workplace policies up to date and adopt a zero-tolerance position on all allegations of bullying and harassment.
The Problem
From Whitehall to the CBI, 2023 has seen its fair share of headlines highlighting the ugly and depressingly commonplace issue of bullying in the workplace.
The line between assertive leadership and bullying will be different for different people.
Intention is irrelevant and there is no distinction between a physical or verbal bully. A forceful reaction to allegations of bullying, be that in press statements or in the Employment Tribunal, usually speaks for itself.
The Law
Despite it being commonplace, there is no such employment claim as “bullying” at work. Individuals who are the victims of workplace bullies often continue to work unsure of which way to turn.
Individuals who are harassed because of a “protected characteristic” under equality legislation, for example, their age, race, sex or religion will have a potential claim. This gives individuals greater protection compared against standalone bullying. Victims may choose to turn to a myriad of other laws for protection, such as health and safety, personal injury or whistleblowing law, but it can be very difficult to bring a successful claim. Most simply do not bother.
Instead, individuals continue to work, often to the detriment of their health, until it becomes too much and resign. In those instances, claims for constructive dismissal can be brought, with cases often settled before they reach an employment tribunal. Constructive unfair dismissal claims require two years of service.
Expert Advice
Physical and online bullying can take many forms including overbearing supervision, constant criticism, exclusion from workplace events or communications, or aggressive or demeaning behaviour.
Employers should take any complaints seriously and respond swiftly, following the procedures set out in workplace policies. Grievances will need to be investigated with the views of both parties considered together with those of any witnesses.
Employers will need to make a judgment call on whether complaints can be resolved informally or via formal disciplinary processes. Either way, a clear timetable should be shared with all parties.
Workplace mediation can be a helpful way to bring parties together to discuss and resolve their differences. It is a voluntary process led by an independent third party. Mediation is not, however, suitable where more serious allegations are made.
In some instances, it may be appropriate to suspend an employee during an investigation. Suspension should not be a knee-jerk reaction given the scope for damage to reputation and the fact that it can be hard to return from a suspension.
Individuals who are bullied in the workplace should not suffer in silence. They should raise complaints with their line manager or with a member of the HR team. A diary of incidents should be kept.
Where bullying has an impact on physical health, medical advice should be sought and shared with an employer. Employers should consider occupational health referrals when an employee speaks up about health and wellbeing being impacted by bullying at work.
Employers should look to create an environment and culture of respect. A clear message of a zero-tolerance approach to harassment and bullying is a good place to start. A robust workplace policy that is communicated to all staff is essential. Those values should be reinforced through induction processes and regular training.
Checklist
- Don’t let rumours or allegations of harassment and bullying drift. Take swift action, keeping in mind fairness and consistency.
- Consider workplace mediation. But be alive to the nature of the complaints and be realistic about whether that will work.
- Be proactive. Keep workplace policies up to date.
- Adopt a zero-tolerance position on all allegations of bullying and harassment.
Beware
“Businesses need strong leadership but that should never be an excuse for workplace harassment and bullying. Everyone has the right to be treated with dignity and respect. The standards do not vary according to the industry sector and Employment Tribunals will not buy the suggestion that you have to be “tougher” to work in certain fields. It is in the hands of employers to protect their staff from harassment and workplace bullying. What does protecting a bully say about an organisation’s culture and values? At the end of the day, that bully will more likely than not become a liability.”
Rhian Radia, Partner and Head of the Bishop & Sewell Employment team.
For initial advice or to arrange a meeting the Employment team, please email [email protected] or call on 020 7631 4141
