Bullying in the workplace

Part two: Businesses need to put robust measures in place to make sure they do not inadvertently allow workplace bullying to occur

Published:  13 November, 2017

In part one of our look at bullying in the workplace, we looked at how bullying is defined, enabling businesses to understand when what may be construed as bullying is taking place between staff members. The next step is handling the situation.

Employers are liable for harassment between employees, and can also be liable for harassment which comes from a third party (for example, a customer). Just as importantly, individuals also have a responsibility to behave in ways which support a non-hostile working environment for themselves and their colleagues.

From an employer’s point of view, the Chartered Institute of Personnel and Development (CIPD), says their first responsibility is “to put in place a robust and well communicated policy that clearly articulates the organisation’s commitment to promoting dignity and respect at work.” The policy should give examples of what constitutes harassment, bullying and intimidating behaviour; that these will be treated as a disciplinary offence; clarify the legal implications and outline the costs associated with liability; describe how employees can get help and make a complaint; promise that allegations will be treated seriously and quickly; note managerial responsibilities; and emphasise that every employee is responsible for their own behaviour.

Employees should be briefed on their obligations, rights and procedure should an issue arise. The policy should be monitored and regularly reviewed for effectiveness.

What will surprise employers is that their responsibilities may extend to any environment where work-related activities take place including social gatherings organised by the employer, such as work parties or outings, unless they can show they took reasonable steps to prevent harassment. Where discrimination-based harassment has occurred employers and individuals can be ordered to pay unlimited compensation, including the payment of compensation for injury to feelings. Individuals can be prosecuted under criminal law too.

Issues arising
When a complaint is made, the CIPD say that it should be dealt with promptly. “Some may be dealt with internally and informally, and in minor cases it may be sufficient for the recipient of harassment to raise the problem with the perpetrator, pointing out the unacceptable behaviour.” But what happens if an employee finds this difficult or embarrassing? Here the CIPD say that procedures should permit support from a colleague, an appropriate manager or someone from the HR department.

Informal procedures should also allow for mediation which may help solve the problem and while maintaining workplace harmony. Acas (http://www.acas.org.uk) can help with this. But if informal approaches don’t work, the next step, is, says the CIPD, to trigger formal a procedure. “These will be needed if the harassment is serious, persists, or if the individual prefers this approach.” To follow this approach, organisations should have a clear formal policy to deal with grievances and disciplinary issues, including bullying and harassment, and this should comply with the Acas Code of Practice on disciplinary and grievance matters.

Part of the process means that any formal allegation of harassment, bullying or any intimidating behaviour should be treated as a disciplinary offence. The CIPD’s advice for investigating, which is backed up by Acas, means that the process should include a prompt, thorough and impartial response; the taking of evidence from witnesses; listening to both the alleged harasser and the complainant’s version of events; a time-scale for resolving the problem; and confidentiality in the majority of cases.

Employers should keep a record of complaints and investigations including the names of those involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. “Remember,” say the CIPD, “all sensitive information should be treated confidentially and meet the requirements of the data protection law which itself is about to get more punitive.”

Lastly, if a complaint is upheld the CIPD says “it may be necessary to relocate or transfer one of those involved to another part of the organisation… and it should not automatically be the complainant who is expected to move, but they should be offered the choice where practical.” It’s also important to keep in mind that where the perpetrator is transferred, no breach of contract must occur or a claim of constructive unfair dismissal could arise.

To conclude
Bullying and harassment is an unpleasant side to human nature. The number of incidents seems to be on the rise, but thankfully the issue isn’t universal. Even so, employers and employees cannot ignore the subject.
 

Related Articles

  • Bullying in the workplace 

    Harassment and bullying remain significant workplace issues despite growing awareness. The Acas Workplace Trends 2016 report said anti-bullying policies had been widely adopted in Britain but were not adequately dealing with this behaviour: “last year over 20,000 calls were taken by the Acas helpline on bullying and harassment with some people reporting truly horrifying incidents including humiliation, ostracism, verbal and physical abuse.”


    Typical behaviours
    According to the Chartered Institute of Personnel and Development (CIPD), many typical harassment and bullying behaviours can manifest in the workplace, from unwanted remarks and physical contact to shouting and persistent unwarranted criticism.

    Research shows employees affected are more likely to be depressed and anxious, less satisfied with their work, have a low opinion of their managers, and want to leave the organisation. The CIPD says “organisations should treat any form of harassment or bullying seriously not just because of the legal implications and because it can lead to under-performance, but also because people have the right to be treated with dignity and respect at work.”

    An organisation’s public image can be badly damaged when incidents occur, particularly when they attract media attention. This was the situation that Audi Reading unfortunately found themselves in at the end of May 2017 as a coroner examined the suicide of an apprentice mechanic. While the behaviour of some of the staff was found to be unacceptable, the coroner held the dealership free of blame for the death as there were numerous other external influences that led to the suicide. But that finding didn’t stop a torrent of ill-informed abuse being directed at the dealership and staff.


    The law
    Bullying is not specifically defined in law but Acas gives a definition. It says that “bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.”

  • part two: Putting a contract out on your staff  

    Good contracts go to the heart of good business, and employment contracts are part of the story. In the last issue we noted the importance of having a written contract, how they are constructed and varied. But what other practical considerations should employers take notice of?
        
    The first is, according to Philip Richardson, a partner and head of employment at Stephensons Solicitors LLP, to understand what a breach of contract is. “This,” he says, “is where either party breaks an express or implied term of a contract. Examples of an employee’s breach include violence, theft, fraud and gross negligence. If the employer finds this has happened they may be entitled to dismiss the individual immediately.” However, he adds that it is important that the employer has genuine grounds for taking such action otherwise it could face a legal claim from the departing employee for unfair dismissal and breach of contract. He offers examples of an employer’s breach that include demoting an employee or failing to pay them without good reason – “if this happens then it may give the employee the entitlement to bring a claim against the employer in the Employment Tribunal.”
        
    At the outset of the employment relationship, disputes aren’t usually envisaged. However, Philip says “a shrewd employer will often put mechanisms in place in the employment contract to protect its position should a dispute arise.” Common clauses that can offer assistance to the employer include the following:

    Garden leave
    If the employer gives an employee notice of dismissal it may decide to place them on garden leave. Philip says the benefit here is that during this period, the employee is usually prohibited from attending work for the duration of their notice period and prevented from contacting other employees or key clients of the business during the interregnum. “This,” he says, “gives the employer the opportunity to deal with employees whose contract has been terminated in acrimonious circumstances and also allows them to protect confidential information and prevent the employee from using it against the company in the future.”
        
    He warns that if an employer wants to utilise this then it is important to include a clause to this effect in the contract of employment otherwise the employer may have difficulty in exercising it. It is also important to note that employees maintain all their contractual and statutory rights and benefits until the end of the garden leave period.

    Restrictive covenants
    This can be a particularly useful clause to include in the employment contract as it sets down the obligations on the employee after his contract is terminated. Philip says the most common types of restrictive covenant prevents the employee for working for a competitor, usually within six months to one year of leaving the business and “can prove extremely useful to protect confidential information and trade secrets.”
        
    Another common form of a restrictive covenant is a non-poaching clause. This prevents the former employee from enticing the employer’s staff away from the business to join him/her in working for a new employer.
        
    However, Philip says that it can be difficult to enforce a restrictive covenant against a former employee, “especially if the clause is unreasonable and does not protect a legitimate business interest as the court may declare the clause void.” He explains that this is because the courts are reluctant to place too great of a restriction on employees after termination. But in practice Richardson thinks that the mere existence of the clause may make the employee think twice before acting in breach, meaning “that a restrictive covenant can be a valuable contractual clause for an employer despite the concerns about its enforceability.”

    Deductions from salary
    A last, but useful, clause for the employer to include, at least from Philip’s perspective, is one that entitles it to make deductions from the employee’s salary in certain circumstances. He says that the most common types of deduction usually contained in the contract of employment include where the employee has caused financial loss to the employer because of their negligence or misconduct, or where the employee leaves shortly after having incurred substantial training costs. However, he cautions employers to “exercise caution in drafting and exercising this clause as any deduction that is not permitted by the clause could be considered unlawful.”



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