Bullying and harassment is a real and serious problem in all workplaces. Both terms are often used but sometimes poorly understood by workers. In this advice to members, we hope to clearly define the terms and provide examples of bullying and harassment. We will also offer guidance on how to address concerns when they arise.
Definitions
The UWU has adopted the National Centre Against Bullying (NCAB) definition of bullying:
Bullying is an ongoing and deliberate misuse of power in relationships through repeated verbal, physical and/or social behaviour that intends to cause physical, social and/or psychological harm. It can involve an individual or a group misusing their power, or perceived power, over one or more persons who feel unable to stop it from happening.
Where bullying extends to physical violence and/or aggression, there are potential criminal charges to bring against the perpetrator(s). Should members suffer physical violence or the threat of the same, the union strongly recommends contacting the police. If the union believes members to be in imminent danger we may contact the police on your behalf.
Harassment, as defined by section 26 of the Equality Act 2010 is:
Unwanted conduct related to a relevant protected characteristic. The conduct must have has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment and/or violating the subject’s dignity.
Harassment may not relate to a protected characteristic but is still prohibited by law under the Protection from Harassment Act 1997.
General expectations
All good employers will have a set of organisational values, a bullying and harassment policy and a dignity at work policy. Members are encouraged to refer to these documents when determining whether behaviours are within the parameters set out in the employer’s policies.
Some policies form part of an employee’s contracts of employment and as such, a failure to adhere to policy may give rise to a breach of contract claim.
If your employer doesn’t have one or more of the above policies or the policy they have is either out of date or poor in its construction, speak to your local UWU representative for advice about how we can raise this collectively on behalf of all members.
Equality implications
As above, bullying and/or harassment is sometimes focused around one or more of the 9 protected characteristics; sex, race, disability, sexual orientation, age, religion or belief, gender reassignment, pregnancy or maternity and marriage or civil partnership.
Should members suffer bullying and/or harassment because of their protected characteristic(s) there may be a legal claim to identify. If members suspect this may be the case, you should notify the union immediately. Potential claims must be filed before 3 months, less 1 day from the date of the last act complained of.
It is important for members to understand that simply having one or more protected characteristic(s) is insufficient on its own to claim unlawful discrimination and/or harassment. Members should always consider whether the behaviour complained of is be related to another, non-equality based factor(s).
However, where protected characteristic(s) are not a factor, this will not change the fact that bullying and/or harassment cannot be tolerated in any workplace.
Health, safety and wellbeing implications
Bullying and/or harassment can have serious health safety and wellbeing implications. Sustained bullying and/or harassment will, over time, impact the morale of the victim(s). Poor morale can lead to excessive levels of stress which in turn leads to increased sickness absence and/or higher staff turn over.
There are obvious financial and operational impacts on the employer in cases of high sickness absence and frequent recruitment exercises. However, the effect on the individual(s) is often significantly worse.
Prolonged work-related stress can lead to the development of mental health issues such as depression, anxiety and post-traumatic stress disorder (PTSD). Also, when victims of bullying and harassment have existing mental health issues, work-related stress is likely to exacerbate existing symptoms and compromise the health safety and wellbeing of members.
There are legal implications for members’ employers in respect of the health, safety and wellbeing of their workers. Under the Health and Safety at Work Act 1974, the employer has a statutory duty of care. This entails the requirement to provide a safe workplace. Workplace health and safety extends to wellbeing. Therefore, the employer is legally obligated to mitigate stress in general but also in respect of bullying and/or harassment.
Employers are required to maintain an accident book. This is a log of accidents and near misses that occur in the workplace. We advise all members to record issues of bullying and/or harassment in the accident book. Irrespective of the specific impacts on members, there is the potential for serious harm and on this basis, it’s a recordable incident.
Employers are also required to identify a senior responsible manager for Health, safety and wellbeing. Their role is to ensure that a competent person carries out an investigation into incidents that have been recorded. Recoding instances in this way can be a powerful tool in identifying the prevalence of bullying and/or harassment in workplaces. This approach is also a means of utilising the law the mitigate the effects of bullying and harassment on the victim(s).
Another tool is a stress risk assessment. Much like generic risk assessments, the employer is required to ensure a competent person assess and controls identified risk through removal or mitigation of risks. The union runs training on the effective operation of stress risk assessments in the workplace. This is a free resource to members and details are available on our website.
Employers should seek to prevent workplace hazards using the risk assessment process and this applies to stress, bullying and harassment. Although instances of compromised dignity at work can be very individual, cases can often be more widespread and collective in nature. Measures should be in place to prevent escalation rather than reacting to individuals concerns case by case.
A well researched and tested method is to routinely use the HSE Management Standards survey on an annual as the basis for an employer’s stress risk assessment. This is an effective way to compare performance year on year and proactively engage with staff in any “hotspot” areas. Additional questions can be added to the survey, for example, to include using a car and mobile working.
On some occasions, an individual stress risk assessment can be supportive however we believe that implementing the TUC’s recommendations on Disability or Reasonable Adjustment Passports are an employee centred and progressive policy, not just for disability but to agree and record reasonable adjustments.
Common complaints
Members often complain about a series of incidents which, taken in isolation may appear to be trivial in nature. Such instances can and do have a cumulative effect. In all cases, members are advised to maintain a diary record of instances that detail:
- the date, time and location of the incident;
- who was present – including the perpetrator(s) and any witness(s);
- what was said, how it was said, how the incident made you feel both at the time and subsequently.
Without a record of contemporaneous notes, it will be difficult for both the union and your employer to adequately investigate instances of bullying and/or harassment.
Bullying and harassment often takes place via email. In such cases, victims can be set unachievable targets. They can also be contacted with a frequency or a time of day that causes stress. Additionally, victims can be communicated with in a way that causes distress or humiliation. An example of this includes copying in peers or senior colleagues to highlight failures or misdeeds. A further example is writing in a hostile manner such as using block capital letters or highlighting text with unnecessary emphasis such as either bold and red text.
Such behaviour is likely to amount to bullying and/or harassment. Members are advised to keep both an electronic and a paper record of any emails that may support a claim of bullying and/or harassment. Such behaviour is also likely to breach the employer’s computer misuse policy.
Employers will often seek to ‘move the problem’ by redeploying either the victim(s) or the perpetrator(s). This approach is ill-advised unless it is accompanied by a combination of reflection, retaining and agreements about future conduct and communication.
It is also commonplace for undertrained managers to misuse and misapply formal procedures. This is most common with disciplinary and capability procedures. Employers should not commence either process unless there is a good and genuine reason to do so.
Furthermore, commencement should always be in line with the employer’s policy, ACAS guidance and relevant employment law. There is a raft of case law that details employers who have fallen foul of a misapplication of procedures and the misuse of suspension.
A failure to act within policy and the law can amount to a breach of contract claim. Such action arguably destroys mutual trust and confidence between worker and employer. In all cases, members are strongly advised to complete the union’s case form for support.
Where to get help
Unless members are in imminent danger, the union should be your first point of contact. The vast majority of our representatives are experienced trade union officials from across the trade union movement. Confidentiality is assured and together we can help define your issues and create a plan of action and resolution.
Our representatives will only take action on your case that is agreed directly with you. The only exception to this is where you disclose instances of criminal activity. In such cases, initially, we will encourage and support you to notify the police. However, in some circumstances, we will be obligated to make a disclosure to the relevant authorities on your behalf.
We will seek to resolve issues of bullying and/or harassment in 2 ways:
- Individually between perpetrator(s) and victim(s); this will be informally at first and if this fails, by utilising formal procedures such as a grievance or a dignity at work complaint.
- Collectively; by approaching the employer directly to discuss a means of defining and identifying the issue(s). We will work collaboratively with the employer to conduct risk assessments, identify and implement control measures and deliver training.
Should either or both of these options fail and subject to a merits assessment by or panel of legal firms, the union will issue legal proceedings on members’ behalf.
Other sources of assistance are:
- Occupational health – a referral will identify some workplace adjustments that can support regular and effective attendance at work.
- Employee assistance programme – most employers have free and confidential telephone counselling services.
- Other members – most issues can be collectivised and there is power in the union.