CIPD - Harassment and bullying at work

Diversity and equality

Revised September 2009

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 the development 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 of harassment and bullying. The terms are used interchangeably by many people, and although some definitions may include bullying as a form of harassment the legal definitions are more precise.

'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, sexual orientation, 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 of harassment also requires the behaviour to have 'the purpose or effect of violating people's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.'

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 in some circumstances, 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.

The legal position with respect to bullying is more complex as there is no separate piece of legislation which deals with work place bullying in isolation. If bullying occurs at work for a non discriminatory reason then there still is legal protection available. However, a myriad of different legal principles may be involved, for example:

breach of contract - usually breach of the implied term that an employer will provide reasonable support to employees to ensure that they can carry out their job without harassment and disruption by fellow workers
Common Law right to take care of safety of workers
Employment Rights Act 1996 (for example constructive unfair dismissal)
personal injury protection involving the duty to take care of workers arising out of the law of Tort
Health and Safety at work etc Act 1974
Trade Union and Labour Relations (Consolidation) Act 1992 (dealing with special types of intimidation etc)
Protection for whistleblowers under the Public Interest Disclosure Act 1998
Criminal Justice and Public Order Act 1994
Public Order Act 1986.
Protection from Harassment Act 1997
Human Rights Act 1998.

Sex and sexual harassment

In April 2008, the Sex Discrimination Act was further amended to change the definition of sex harassment and to expressly include 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

The difference between sex harassment and sexual harassment is that sex harassment occurs where there is unwanted conduct related to the sex of a person with the purpose or effect of violating their dignity, and creating an intimidating, hostile, degrading, humiliating or offensive environment. By contrast, sexual harassment occurs where a person subjects another to unwanted verbal or physical conduct of a sexual nature (for example pinching a colleague's bottom or making lewd comments) again with the purpose or effect of violating the dignity of a person, and creating an intimidating, hostile, degrading, humiliating or offensive environment.

Third party harassment

Within the context of some of the discrimination legislation employers may be liable if they unreasonably fail to protect employees from third party harassment, for example by clients or customers.

The employer is only liable if they knew that the woman or man has been subject to such harassment in the course of their employment on at least two other occasions by a third party. It is immaterial whether the third party is the same or a different person on each occasion.

CIPD members can find out more on the legal aspects of this topic including the defences available to claims for sexual and other types of discriminatory harassment from our General Discrimination and Sex Discrimination FAQs in the Employment Law at Work area of our website.

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

Tackling workplace bullying and harassment is a joint responsibility of the organisation and individuals working within it.

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 - see below for further details of the content of policies.

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

Findings from our survey showed that 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 may extend to any environment where work-related activities take place. These can include social gatherings organised by the employer such as work parties or outings. An employer could be liable for events which take place on these occasions unless they can 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.

Employers and individuals can be ordered to pay unlimited compensation where discrimination-based harassment has occurred, including the payment of compensation for injury to feelings.

What actions are needed to tackle harassment?

Policies, communication and training

A well-designed policy is essential in addressing harassment. Policies should be agreed with union or employee representatives.
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, why and how they occurred, who was involved and where
individual complaints to ensure resolution and no victimisation.

(Any such ‘dignity at work’ or anti-bullying policy should be co-ordinated with the organisation’s grievance and disciplinary policy which may be needed to deal with incidents which arise.)

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.

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 one in four 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

Some complaints may be dealt with internally and informally. In some minor cases it may be 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, 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. Organisations should have a clear formal policy to deal with all types of grievances and disciplinary issues including bullying and harassment and this should comply with the Acas code of practice on disciplinary and grievance matters - 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
a companion for both parties if required
complaint details, the right to respond and adequate time to respond
a time-scale for resolving the problem
confidentiality in the majority of cases.

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 unfair dismissal could arise.

Although not always necessary, if a complaint is not upheld, a voluntary transfer of one of the employees may be offered if required. These must be consensual and dealt with on a case by case basis and if no move of either party is to take place 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

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 and their current and future employees, as well as their customers.

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

Acas
Department for Business, Innovation and Skills (BIS)
Equality and Human Rights Commission
The National Bullying Helpline Tel: +44 (0)8452 255787

References

ACAS. (2009) Bullying and harassment at work: guidance for employees. London: Acas. Available at: http://www.acas.org.uk/index.aspx?articleid=797

Harassment and bullying at work