CIPD - Harassment and bullying at work

Diversity and equality

Revised April 2008

This factsheet gives introductory guidance. It:

sets out the main forms and grounds of harassment and bullying at work
outlines how harassment and bullying affect people and organisations
examines the legal implications if employers allow such behaviour to go unchallenged
gives guidance on he ddevelopment of appropriate policies
includes the CIPD viewpoint.

What do we mean by harassment and bullying?

In their advice leaflet for employees¹, Acas give the following definitions, but also note that the 'terms are used interchangeably by most people, and many definitions include bullying as a form of harassment'

'Harassment, in general terms, is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient.'

'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.'

The legal definition is if the behaviour 'has the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment'.

It is not the intention of the perpetrator that is key in deciding if harassment or bullying has occurred, but whether the behaviour is unacceptable by reasonable normal standards and is unwelcome to the person or people subjected to it or witnessing it.

The legal position

Since October 2006 UK discrimination law has covered harassment on a variety of grounds including age, disability, colour, ethnic or national origin, race, religious belief or other similar philosophical belief, sex and sexuality.

Individuals are protected from discrimination both while applying for a job, during it, and after the working relationship ends (for example in terms of the provision of a verbal or written reference). There is also protection for people against harassment on the basis of their membership or non-membership of a trade union and, in Northern Ireland, against harassment on the basis of political belief.

In April 2008, the Sex Discrimination Act was further amended to change the definition of sex harassment and to include for the first time employer liability for third party harassment. See our factsheet on sex discrimination issues for more information

Go to our Sex discrimination, sexual orientation, gender reassignment and employment factsheet

According to the Government Equalities Office² 'the difference between sex harassment and sexual harassment is that sex harassment occurs when a person generally behaves in an offensive way to another related to gender (such as male manager referring to a female colleague as a ‘bimbo’). By contrast, sexual harassment occurs where a person subjects another to unwanted attention of a sexual nature (for example pinching a colleague's bottom or making lewd comments)'.

What is third party harassment?

Employers are now liable if they unreasonably fail to protect employees from third party harassment. In the words of Rachel Dineley of Beachcroft LLP:

'The new provisions relating to harassment by third parties may create the greatest difficulties for employers, who do not have the same control over third parties as they have over employees. An employer is to be treated as subjecting a woman to harassment where:

a third party subjects the woman / man to harassment in the course of her employment, and
the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.

This is provided that the employer knows that the woman man has been subject to such harassment on at least two other occasions. The term ’third party’ means anyone other than the employer or one of his employees. It is immaterial whether the third party is the same or a different person on each occasion.'

It is likely that we will have to wait on case law to guide us further on this. Again in Rachel Dineley’s words: 'However unacceptable sexual harassment may be, it must be recognised that some jobs inevitably entail dealing with unwanted conduct on the part of third parties (as, for example, those in the police and medical profession dealing with drunk and injured offenders). In defending claims for sexual harassment, employers will need to demonstrate that they have anticipated such circumstances and have taken such measures as were reasonably practicable to prevent such harassment. What those measures should be may well depend upon the nature of the job being undertaken, the workplace environment and the degree of risk of third party harassment occurring.'

What do harassment and bullying look like?

'Bullying or harassment may be by an individual against an individual (perhaps by someone in a position of authority such as a manager or supervisor) or involve groups of people. It may be obvious or it may be insidious'¹.

Harassment and bullying can range from extremes such as physical violence to less obvious forms like ignoring someone. It can be delivered in a variety of ways – with or without witnesses. and be persistent behaviour over a period of time, or a one-off act and can include:

physical contact which is unwanted
unwelcome remarks about a person's age, dress, appearance, race or marital status
jokes, offensive language, gossip, slander, sectarian songs and letters
posters, graffiti, obscene gestures, flags, bunting and emblems
isolation or non-cooperation and exclusion from social activities
coercion for sexual favours
pressure to participate in political/religious groups
intrusion by pestering, spying and stalking
failure to safeguard confidential information
shouting at staff
setting impossible deadlines
persistent criticism
personal insults.

Employers and employees have responsibilities

Employers’ responsibilities

An employer’s 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 and a zero tolerance approach to both harassment and bullying. Employers need to take action to prevent harassment, support the reporting of all incidents no matter how minor, respond promptly and ensure the corporate policy is followed correctly.

Harassment and bullying thrive in a workplace culture where it is ignored rather than challenged. Findings from one of our surveys showed those who experience bullying or harassment are more likely to be depressed and anxious, less satisfied with their work, to have a low opinion of their managers and senior managers and to want to leave their organisation.

Go to our survey How engaged are British employees?

Employers’ responsibilities extend to any environment where work-related activities take place. These include social gatherings organised by the employer such as work parties or outings (when they are held at a time or place associated with the workplace). Organisations must maintain their commitment to promoting an open and non-threatening environment on these occasions. If they do not, the employer could be liable unless they were able to show they took reasonable steps to prevent harassment.

Employers should be especially aware of ‘cyber bullying’. Detrimental texts sent via mobiles or images of work colleagues posted on external websites following work events could amount to bullying. As this would be seen to have its origins in the workplace, the employer could be liable.

An employer can be ordered to pay unlimited compensation where harassment has occurred, including the payment of fines for injury to feelings.

Individual responsibilities

Individuals can be personally liable to pay compensation and can be prosecuted under criminal as well as civil law. Individuals also have a responsibility to behave in ways which support a hostile-free working environment for themselves and their colleagues. They should play their part in making the organisation’s policy a reality and be prepared to take challenge inappropriate behaviour and take action if they observe or have evidence that someone else is being harassed.

What actions are needed to tackle harassment?

Policies, communication and training

A well-designed policy statement is essential in addressing harassment. Policy statements should be agreed with union or employee representatives. A policy does not automatically change attitudes and behaviours. All corporate communication tools should reflect a zero tolerance of bullying and harassment and managers should have clear targets for ensuring that this is not a factor in their teams.

Policies should:

give examples of what constitutes harassment, bullying and intimidating behaviour including cyber-bullying, work-related events and harassment by third parties
explain the damaging effects and why it will not be tolerated
state that it will be treated as a disciplinary offence
clarify the legal implications and outline the costs associated with personal liability
describe how to get help and make a complaint, formally and informally
promise that allegations will be treated speedily, seriously and confidentially and that you prevent victimisation
clarify the accountability of all managers, and the role of union or employee representatives
require supervisors/managers to implement policy and ensure it is understood
emphasise that every employee carries responsibility for their behaviour..

Policies should be communicated so that all employees:

have been made aware – through induction, training and other processes - about their rights and personal responsibilities under the policy understand the organisation’s commitment to deal with harassment
are aware of who to contact if they want to discuss their experiences in order to decide what steps to take
know how to take a complaint forward and the timescales for any formal procedures.

The policy should be monitored and regularly reviewed for effectiveness, including:

records of complaints, who was involved and where, why and how they occurred
individual complaints to ensure resolution and no victimisation.

Dealing with complaints

An employer who fails to investigate has little defence at an employment tribunal. Complaints should never be ignored but investigated swiftly and confidentially ensuring the rights of all are protected. Procedures should provide informal and formal mechanisms for raising complaints. Clear time-scales should be set for the resolution of complaints, taking account of legal limitations.

Advice and counselling

All employees should have access to speak in confidence about an issue they may have. This could be an employee helpline or a nominated person, who may be a trained volunteer colleague, to discuss their experiences in the strictest confidence. This can help complainants decide what course of action to take by exploring their options. The decision to progress a complaint should rest with the individual. Complainants should be encouraged not to ignore behaviour that makes them uncomfortable, but be supported in taking appropriate action so that the behaviour stops.

Nominated contacts for harassment should be carefully selected and trained. Their role should be independent of investigations and they should not be required to provide evidence in proceedings. They should receive ongoing support from management to fulfil this brief. They should understand the nature of the issues related to different forms and grounds of harassment and intimidating behaviour. They should also be able to talk with complainants freely and confidentially in a private environment. They can come from all departments and levels of an organisation.

Mediation is an increasingly useful tool in managing conflict at work, including harassment issues where difficult personal issues are involved, and it is often one individual’s word against another’s. Mediators can come from outside or inside an organisation. Our most recent survey on conflict management at work shows however that only 1 in 4 organisations use internal mediation. The survey also provides evidence that organisations that provide mediation training receive fewer tribunal claims than those that don’t.

Go to our Managing conflict at work survey

Guidance and counselling can be offered to people whose behaviour is unacceptable, as well as those affected by being harassed. Simply punishing those responsible for the harassment risks isolating individuals who may not understand how their behaviour is affecting their colleagues. Sometimes people are unaware of, or insensitive to, the impact of their actions and counselling can help them to accept the impact of their behaviour, change behaviour or prevent further incidents. Being clear about what is acceptable behaviour at work, as well as defining unacceptable behaviours, will prevent ambiguity and stop harassment flourishing.

Informal procedures

Ideally, complaints should be dealt with internally and informally. Solutions can be reached quickly, with minimum risk to confidentiality. It pays to act quickly to reduce personal embarrassment and suffering, avoid disruption to work and working relationships and, where complaints are contested, expensive litigation costs and damaged business reputations.

In many cases it is sufficient for the recipient of harassment to raise the problem with the perpetrator, pointing out the unacceptable behaviour. But if an employee finds this difficult or embarrassing, informal procedures should enable support from a colleague, an appropriate manager or a personnel department representative. A choice of contact should be available in case the person’s manager is the harasser.

Formal procedures

Formal procedures are needed if the harassment is serious, if it is the individual’s preference or where an informal approach has failed. Since introduction of the Dispute Resolution Regulations in 2004 it has become imperative that organisations have a clear formal policy and that employees know to whom they should make a complaint – for more information see our factsheet on dealing with workplace discipline and grievances.

Go to our factsheet on Discipline and grievances at work

Investigation

Formal allegations of harassment, bullying or any intimidating behaviour should be treated as a disciplinary offence. Investigation procedures should provide:

a prompt, thorough and impartial response
independent, skilled and objective investigators
representation for both parties
complaint details, the right to respond and adequate time to respond
a time-scale for resolving the problem
confidentiality for all parties.

A record of complaints and investigations should always be made. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated confidentially and meet the requirements of the data protection law - see our factsheet on data protection for more information.

Go to our factsheet on Data protection

After the procedure

Where a complaint is upheld it may be necessary to relocate or transfer one party. It should not automatically be the complainant who is expected to move, but they should be offered the choice where practical.

Where the perpetrator is transferred, no breach of contract must occur or a claim of constructive dismissal could arise. Transfers on disadvantageous terms can be offered to the perpetrator where allegations are proved, as an alternative to dismissal.

Although not always necessary, if a complaint is not upheld, a voluntary transfer of one of the employees should be considered. These must be dealt with on a case by case basis and if no move is to take place of either party It is important to check the harassment has stopped and there has been no victimisation or retaliation.

CIPD viewpoint

Achieving high levels of performance from people at work is essential in today’s competitive market place. Organisations should treat any form of harassment or bullying seriously not just because of the legal implications, but because it can lead to under-performance at work. Eliminating all forms of harassment and bullying makes good business sense. A workplace environment which is free from hostility enables people to contribute more effectively to organisational success and to achieve higher levels of job satisfaction. People cannot make their best contribution when under fear of harassment, bullying or abuse.

An organisation’s public image can be badly damaged when incidents of harassment occur, particularly when they attract media attention. This can affect relationships between an employer, their current and future employees, as well as their customers. Organisations must address the human or systemic failures that may foster a climate where bullying is acceptable.

The conflict which harassment creates should not be underestimated. Employees can be subject to high levels of stress which can reduce engagement and may lead to higher labour turnover, increased sickness absence and less productive and effective teams. Find out more about stress in the workplace in our factsheet.

Go to our Stress at work factsheet

Developing and implementing preventive policies and procedures creates a climate of greater confidence in being able to challenge harassment. The right policies and procedures enable employers to tackle individual complaints quickly and effectively.

An organisation’s goal should be to develop a culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal. Everybody needs to feel responsible for challenging all forms of harassment and for upholding personal dignity.

For further guidance on how to promote a positive culture at work and identify the key issues and people that need to be addressed, CIPD members can use our new practical tool on addressing workplace bullying.

Go to our tool on Tackling bullying at work

Useful contacts

The Andrea Adams Trust
A not-for-profit organisation set up to continue the work of Andrea Adams who published a ground-breaking book on bullying at work in 1992.
Acas
Department for Business, Enterprise and Regulatory Reform (BERR)
Equality and Human Rights Commission

References

ACAS. (2007) Bullying and harassment at work: guidance for employees. London: Acas. Available at: http://www.acas.org.uk/index.aspx?articleid=797
GOVERNMENT EQUALITIES OFFICE. (2008) Changes to the definition of sex harassment and employer liability for third party harassment under the Sex Discrimination Act 1975 [online]. Available at: http://www.equalities.gov.uk/legislation/index.htm

Harassment and bullying at work