Introduction
If an employee is harassed or bullied at work, there are many pieces of legislation that mean the employer could face a costly claim against it. The relevant areas of law are detailed below. There are many other costs of not preventing harassment in the workplace. These include losing key staff, absenteeism, loss of productivity and difficulty recruiting due to a poor reputation as a company.
Definition of harassment
Under this Act an employer can be liable for acts of harassment if they are committed by one employee against another employee in the course of the employment. An employee subjected to harassment under the Act can bring a claim against both the harasser and the employer.
Harassment is defined as
- “ unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B” (B being the employee subject to the conduct)
- where an employee engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect as set out at 1 above
- where an employee is treated less favourably because they have either submitted to or rejected sexual harassment, or harassment related to sex or gender reassignment
Conduct will be considered as having the effect stated at 1 above, if having regard to the views of B and the circumstances of the case it is reasonable to believe the conduct has that effect.
What is a protected characteristic?
A protected characteristic for the purposes of the harassment provisions of the Act are the following: age, religion or belief, sex, sexual orientation, race, gender reassignment or disability
The Equality Act provides that the harassment does not have to take place on the basis of B’s own protected characteristic but can be on the basis that B is perceived to have the protected characteristic or associates with someone who has a protected characteristic. So for example, calling a heterosexual male “gay boy” could be harassment on grounds of sexual orientation and calling someone a “sugar daddy” because they have a younger girlfriend could be harassment on grounds of age.
How does this apply?
Under the Equality Act, a single act can amount to harassment and there is no need for the employee subject to the harassment to have made it clear that it was unwanted. It is not unusual for an employee to have put up with harassment for a number of years and finally decide that enough is enough.
Also there is no need for there to be any intention to harass or for the employee who finds the conduct is humiliating to actually be the subject of the harassment. The Code of Practice for the Equality Act gives as an example the following: “During a training session attended by both male and female workers, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not specifically directed at her.”
Compensation for acts of discrimination is unlimited and includes an injury to feelings award.
Employment Rights Act 1996 – constructive dismissal
If an employee is subjected to harassment or bullying at work which, either the employer permits to continue or about which the employee raises a complaint which is not dealt with or not dealt with appropriately, then the employee could resign and claim constructive dismissal. The basis of the claim is likely to be that the employer had breached the implied term of trust and confidence. This can apply, whether or not the act complained of is discriminatory.
Protection from Harassment Act 1997
An employer may also be liable under this Act if one of its employees pursued a course of conduct towards someone (not necessarily an employee), during the course of the employee’s employment, which the employee knew or ought to have known would be harassment.
Health and Safety at Work Act 1974
Employees are entitled to a safe system of work. An employee injured (whether a physical or psychiatric injury) as a result of harassment in the workplace may bring a personal injury claim on the basis that the employer has not complied with their obligations under the Act.
Steps an employer should take
We would therefore advise that all organisations put in place as a minimum the following:
- A Harassment and Bullying procedure that is appropriate to their particular organisation HARASSMENT AND BULLYING POLICY. Make sure that procedure is available to all employees and that it not only makes clear the organisation’s commitment to preventing harassment and bullying but sets out the complaints procedure.
- Briefings are given to all employees on the procedure as part of the induction process and/or at the time of introduction of any policy. Repeated briefings should be carried out at regular intervals (no more than 2 years) throughout employment. Keep records of the briefings provided and to show hat everyone has received the training.
- Training for all staff from supervisor level and above to ensure they understand their obligations in preventing harassment and bullying and giving them skills to deal with complaints. Again, there should be refresher training. Keep records of the training given and the names of those attending (There is no need for the training to be done by an outside provider although some organisations prefer to do so. We do offer in-house training on preventing harassment. Please contact the HR Rely team if you would like to find out more.)
The above is not an exhaustive list and each organisation should review their policies, procedures and practices on a continuing basis to assess whether there is anything further that should be done. It is also important that the procedure is adhered to to ensure that complaints are properly dealt with in accordance with the procedure and that inappropriate behaviour is not treated as acceptable by management. Any harassment policy should make it clear that an organisation will also deal with complaints made by its employees against third parties.
One of the key things to do when briefing employees and training supervisors and line managers is to make it clear what could amount to harassment. This is best done by providing specific examples. Employees often understand that harassment is unacceptable but don’t always recognise what amounts to harassment. Some employees may think that only physical conduct is harassment or that harassment has to be directed to the employee, neither of which is correct. Emphasis might need to be placed on the fact that harassment includes conduct based on an employee’s perceived protected characteristic or because they associate with someone who has a protected characteristic.
Any formal complaints that are received must be investigated. Ideally an organisation should have specific individuals trained to investigate bullying or harassment complaints. The investigation should be dealt with as sensitively and confidentially as possible and not delayed. If a delay in the investigation process is unavoidable e.g. a key witness is on holiday, then the relevant parties need to be kept informed. However if supervisors or managers witness behaviour that is unacceptable, it is also their responsibility to deal with the behaviour and not wait until a complaint is received.
There are circumstances where informal complaints of harassment should be investigated. If you are unsure how to deal with complaints of harassment that have been raised in an informal matter contact your HR Rely advisor to get advice on how to proceed.
Once a complaint has been investigated and evidence of bullying or harassment has been found, this may result in not only disciplinary action against the harasser but other corrective actions. For example, providing training to a particular group and then reviewing the group’s behaviour at a suitable interval after the training, checking on the complainant’s well being and that there have been no further instances, and monitoring anyone who has been disciplined but still works within the business (particularly if they have been moved to another area).