Harassment and bullying

Topic Index
Overview
Duty to investigate
Employer’s liability
Protection from Harassment Act
Policies
Possible claims
Resources

Overview

Harassment is defined in the Equality Act 2010 as 'unwanted conduct related to a protected characteristic which has the purpose or effect of violating the dignity of a person or creating an intimidating, hostile, degrading, humiliating or offensive environment'.
There is no separate legal definition of bullying but the courts have stated that they will recognise it when they see it. Bullying behaviour may result in constructive dismissal claims or involve breaches of health and safety legislation.
Harassment includes verbal and non-verbal abuse; general conduct which creates an intimidating work environment, e.g. where there is a homophobic attitude' and intentional and unintentional acts.
The motive/intention of the harasser is irrelevant (it may explain but will not excuse).
Harassment usually consists of persistent acts - although a single occurrence, provided it is serious enough, can amount to harassment.
Harassment may also amount to a criminal act.
The test for harassment requires some objectivity, i.e. would a reasonable person consider the conduct to be harassment. This generally means that a very sensitive employee who takes offence unreasonably at a harmless comment will not be held to have been harassed.

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Duty to investigate

It is essential that an employer investigates any complaint of harassment or bullying. The following steps should be taken:
- Take full details of the complaint in writing (this should be handled sensitively and consideration should be given as to who should do this).
- Get the complainant to confirm that the details of his or her complaint are correct.
- If the allegation is serious, consider suspending the alleged harasser/bullyer. Suspension without pay will be a breach of contract unless there is a contractual power to do so.
- Take details from the alleged harasser/bullyer of what happened.
- Hold a disciplinary hearing where the accused should have the opportunity to answer the allegations, call witnesses and have a companion accompany him or her.
- Consider what action should be taken: should either party be moved to another job? Should further disciplinary action be taken, e.g. a warning or dismissal?
- Provide an appeals procedure.

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Employer’s liability

An employer is vicariously liable for the discriminatory acts of its employees when those acts are carried out in the course of their employment.
Such liability arises whether or not the acts are done with the employer’s knowledge or approval.
Employers may be liable even if the act happens outside work hours, provided there is a work connection, e.g. a work-related social event.
An employer has a defence to vicarious liability if it took all reasonable steps to prevent the discrimination happening.
An employer can generally make use of this defence if it:
- has an equal opportunities policy
- has arranged training on equal opportunities
- has instigated disciplinary proceedings which made it clear that acts of harassment/bullying will be treated as gross misconduct
- ensured that employees were fully aware of the policies and the relevant disciplinary procedures
Employers can be liable for harassing acts of third parties (such as a customer or contractor) where they fail to take such steps as would be reasonably practicable to prevent the harassment. Here the 'three strikes' rule applies - the employer cannot be held liable unless it knows that the employee has experienced third-party harassment on at least two previous occasions - although the perpetrator need not be the same person on all three occasions. The idea behind this is to ensure that employers are not held liable unless something happens to put them on notice that an employee is at risk, giving them an opportunity to put a stop to any inappropriate behaviour. In March 2011, the Coalition Government said that it would consult on removing this 'unworkable requirement'.

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Protection from Harassment Act

The Protection from Harassment Act 2007 (PHA) prohibits a person from pursuing a course of conduct that amounts to harassment of another, and which he or she knows (or ought to know) amounts to harassment.
Harassment isn’t exhaustively defined by the Act but it does include causing someone alarm or distress.
Although intended primarily as an ‘anti-stalking’ measure, case law has established that employers can be held vicariously liable under the PHA for acts of harassment, i.e. bullying, carried out during employment.
Employers can only be held vicariously liable for acts of their employees which are carried out in the ‘course of their employment’.
A ‘course of conduct’ requires conduct on at least two occasions. Acts do not have to follow one on from the other within a short space of time. Acts separated in time by a year of more have been held to amount to a ‘course of conduct’. An employer could not be liable under the PHA for acts of harassment each carried out by a different employee; a ‘course of conduct’ will only arise if it’s pursued by the same person.
When considering whether acts actually amount to harassment, courts will consider the cumulative effect of a course of conduct rather than whether each individual incident amounted to ‘harassment’.

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Policies

A bullying/harassment prevention policy should include:
- a definition and explanation of bullying and harassment
- a statement of commitment from senior management
- a clear statement that bullying and harassment will not be tolerated
- examples of unacceptable behaviour
- a statement that bullying and harassment may be treated as disciplinary offences under the organisation's disciplinary procedure
The policy should then give details of the:
- procedures to be taken if bullying or harassment is experienced
- who to contact if bullying or harassment is experienced
- steps the organisation will take to prevent bullying and harassment
- responsibilities of supervisors and managers
- confidentiality and protection provided to the complainant
- investigation and disciplinary procedures, including timescales for action
- counselling and support available
- training available to managers
- protection provided from unfounded allegations
- implementation, review and monitoring of the policy

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Possible claims

As well as bringing a discrimination claim an employee may also be eligible to bring a complaint of constructive dismissal because the employer has breached the mutual term of trust and confidence.
In cases of serious workplace bullying it might be necessary to invoke criminal law. Under the Criminal Justice and Public Order Act the offence of 'intentional harassment' exists.
Employees may also make a negligence claim where the bullying/harassment causes psychological injury which was reasonably foreseeable.
Claims may also been brought under the Protection from Harassment Act 1997 provided that there is a course of conduct and that there is a considerable degree of gravity or oppressive behaviour - simple unreasonable behaviour is not enough.

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Resources

The Policies and Documents section contains a model clause on anti-harassment and a specimen anti-bulying and harassment policy (subscribers only).

ACAS