Selected cases on harassment in the workplace
Harassment and bullying remain significant workplace issues despite increasing awareness of the problem. There are many typical harassment and bullying behaviours which can manifest in the workplace, from unwanted physical contact and unwelcome remarks to shouting and persistent unwarranted criticism. Research shows that employees who are the recipients of these behaviours 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.
This factsheet examines the legal positions on harassment and bullying in the workplace, and outlines employers' and employees' responsibilities in addressing the problem. For employers, this includes putting in place a policy which articulates the organisation’s commitment to promoting dignity and respect at work; for employees, it means supporting the organisation's policies and behaving in ways which encourage a non-hostile working environment. Finally, this factsheet provides HR practitioners with introductory advice on dealing promptly with complaints.
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. Employers should foster a fair and inclusive working environment that enables everyone to feel they can contribute at work.
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. Furthermore, an organisation’s public image can be damaged when harassment incidents occur, affecting relationships between an employer and their current and future employees, as well as their customers.
Employers’ first responsibility is to clearly articulate the organisation’s policy on bullying and harassment at work, dealing with any issues promptly, seriously and discretely. But HR also has a role to play beyond the formal policies and practices. HR professionals should lead development of a broader positive culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal.
What is harassment and bullying?
The Equality Act 2010, which applies in Great Britain, defines harassment as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
Bullying is not specifically defined in UK law but Acas’ advice leaflet says bullying 'may be characterised as: Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.
What are harassment and bullying behaviours?
Harassment and bullying may be against one or more people and may involve single or repeated incidents ranging from extreme forms of intimidating behaviour, such as physical violence, to more subtle forms such as ignoring someone. It can often occur without witnesses, and takes place in face-to-face interactions, as well as online. Examples include:
- unwanted physical contact
- unwelcome remarks about a person’s age, dress, appearance, race or marital status, jokes at personal expense, 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
- personal intrusion from pestering, spying and stalking
- failure to safeguard confidential information
- shouting and bawling
- setting impossible deadlines
- persistent unwarranted criticism
- personal insults.
The continuing issue of sexual harassment in particular has been highlighted in the media recently. A 2016 report Still just a bit of banter? shows more than half of women overall, and nearly two-thirds of women aged 18-24 years old, have experienced sexual harassment at work. Read our guidance on how employers should respond.
Research shows that people 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.
The legal position
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
In Great Britain, harassment on the basis of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation is covered by the Equality Act 2010. The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act.
The law protects individuals from harassment while applying for a job, in employment and in some circumstances after the working relationship has ended (for example, in connection with 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 England and Wales, harassment because of an employee’s political views is not automatically protected although employees who were dismissed on or after 25 June 2013 as a result of their political opinion or affiliation don't need two years’ service in order to bring an unfair dismissal claim.)
Employers are liable for harassment between employees, and can also be liable for harassment which comes from a third party (for example, a customer). Although the government has removed express protection for this third party harassment from the Equality Act, liability can still arise as a result of other legal duties for example breach of contract, direct discrimination, the Protection from Harassment Act 1997 and so on. These other legal duties and good practice mean that employers should continue to take steps to protect employees from all forms of harassment.
The legal position with respect to bullying is more complex as there is no separate piece of legislation which deals with workplace bullying in isolation. Bullying might be part of discriminatory behaviour, or related to a myriad of different legal principles and specific laws, 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
- the common law obligation for an employer to take care of workers' safety
- 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
- Public Order Act 1986
- Trade Union and Labour Relations (Consolidation) Act 1992 - dealing with special types of intimidation
- Criminal Justice and Public Order Act 1994
- Employment Rights Act 1996 - for example, constructive unfair dismissal
- Protection from Harassment Act 1997
- protection for whistleblowers under the Public Interest Disclosure Act 1998
- Human Rights Act 1998.
Responsibilities of employers and employees
Despite increasing awareness of the problems of bullying and harassment, these behaviours are still a significant workplace issue.
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. But employers’ responsibilities may extend to any environment where work-related activities take place, 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.
Importantly, all individuals 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.
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.
Policies, communication and training
A well-designed policy is essential to tackle harassment. Policies should be agreed with trade union or employee representatives and be drawn to everyone’s attention. They 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 the employer prevents 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.
All employees should:
- be made aware - through induction, training and other processes - about their rights and personal responsibilities under the policy and understand the organisation’s commitment to deal with harassment
- know 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.
It’s also essential that line managers understand their role in addressing all forms of intimidating behaviour to stop it from being repeated, and that they have access to help and support with appropriate confidentiality and sensitivity.
All dignity at work or anti-bullying policies should be co-ordinated with the organisation’s grievance and disciplinary policy.
Advice and counselling
All employees should have access to someone inside the organisation trained for this role or an outside sponsored service. This enables them to talk in confidence about any intimidating behaviour they have experienced or observed in order to discuss the options available to resolve the problem and decide what action to take. The decision to progress a complaint should rest with the individual.
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.
Developing a culture of respect
Dealing with bullying and harassment doesn’t stop with introduction of formal policies and practices. Employers should promote a positive culture at work for everyone based on personal respect and dignity.
Four elements are essential in this process:
- Creating an atmosphere in which the organisation and its leaders have a clear vision and sense of what a culture of dignity and respect would be like in practice.
- Establishing and integrating a continuous assessment and improvement approach that is built on the shared commitment to make change happen.
- Developing tools that measure qualitative and quantitative improvements in the culture of the organisation.
- Identifying the necessary tools and approaches required for maintaining the momentum of cultural change.
Dealing with complaints
All complaints should be dealt with promptly. Some may be dealt with internally and informally. 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 if an employee finds this difficult or embarrassing, procedures should enable support from a colleague, an appropriate manager or someone from HR. A choice of contact should be available in case the person’s manager is the alleged harasser. Employees can also call the Acas helpline for advice.
Our Conflict management survey shows that employers believe that mediation helps improve relationships between employees, reduce or eliminate the stress involved in more formal processes and avoid the costs involved in defending employment tribunal claims.
If informal approaches don’t work, formal procedures should be triggered. They’re needed if the harassment is serious or persists, or if the individual prefers this approach.
Organisations should have a clear formal policy to deal with all types of grievances and disciplinary issues, including bullying and harassment.
Formal allegations of harassment, bullying or any intimidating behaviour should be treated as a disciplinary offence. Investigation should include:
- a prompt, thorough and impartial response
- taking evidence from witnesses
- listening to both the alleged harasser and the complainant’s version of events
- a time-scale for resolving the problem
- confidentiality in the majority of cases.
Employers should always make a record of complaints and investigations. 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 data protection law.
Where a complaint is upheld it may be necessary to relocate or transfer one of those involved to another part of the organisation. 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.
Useful contacts and further reading
EVESSON, J., OXENBRIDGE, S. and TAYLOR, D. (2015) Seeking better solutions: tackling bullying and ill-treatment in Britain’s workplaces. Acas Policy Discussion Paper. London: Acas.
HOEL, H., LEWIS, D. and EINARSDOTTIR, A. (2014) The ups and downs of LGBs’ workplace experiences: discrimination, bullying and harassment of lesbian, gay and bisexual employees in Britain. Manchester: Manchester Business School.
QUIGG, A-M. (2015) The handbook of dealing with workplace bullying. Farnham: Gower.
CALNAN, M. (2016) Why is sexual harassment at work still so rife?PM Daily. 11 August.
HARRINGTON, S., RAYNER, C. and WARREN, S. (2012) Too hot to handle? Trust and human resource practitioners' implementation of anti-bullying policy. Human Resource Management Journal. Vol 22, No 4, November. pp392-408.
LEWIS, G. (2015) Bullying remains rife and unchecked in UK workplaces, research finds. PM Daily, 25 August.
MAGEE, C. et al (2017) Workplace bullying and absenteeism: the mediating roles of poor health and work engagement. Human Resource Management Journal. Vol 27 No 3, July. pp319-501.
MCDONALD, P. (2012) Workplace sexual harassment 30 years on: a review of the literature. International Journal of Management Reviews. Vol 14, No 1, March. pp1-17.
Racial harassment in the workplace. (2011) IDS Employment Law Brief. No 937, November. pp12-19.
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This factsheet was last updated by Ksenia Zheltoukhova.
Ksenia Zheltoukhova: Head of Research
Ksenia is responsible for leading research innovation and capability development at the CIPD. She joined in 2013 as a Research Adviser, leading a number of projects, including a major research programme, Profession for the Future, investigating principles-based approach to professional standards as a way of driving ethical and sustainable decision-making by the business.
Prior to the CIPD, Ksenia was a researcher at The Work Foundation, working on Future of HR, Leadership, and Health and Well-being streams. With a background in organisational psychology, she holds a PhD in Management from Lancaster University, where her research examined the effects of leaders’ sacrificial behaviours on followers.