Practical support around key areas to tackle sexual harassment and bullying at work
Harassment and bullying remain significant workplace issues despite increasing awareness of the problem. There are many typical harassment and bullying behaviours in the workplace, from unwanted physical contact and shouting, to unwelcome remarks and persistent unwarranted criticism. Recipients of these behaviours are more likely to experience anxiety, be less satisfied at work and want to leave the organisation.
This factsheet examines the legal positions on harassment and bullying at work, 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 tolerant and inclusive working environment. Finally, this factsheet provides HR practitioners with introductory advice on dealing promptly with complaints.
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People have the right to be treated with dignity and respect at work and organisations should take any form of harassment or bullying seriously. 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, under performance and less productive and effective teams. In addition to legal implications, 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, and deal with any issues promptly, seriously and discreetly. But HR also has a role to play beyond the formal policies and practices. HR professionals should lead on the development of a positive and inclusive culture with zero-tolerance for harassment and bullying, where individuals are confident enough to bring complaints without fear of ridicule or reprisal.
What is harassment and bullying?
Bullying and harassment are terms that are often used interchangeably. However legally, harassment usually has a very specific legal meaning. Under the Equality Act 2010 harassment is defined as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’. Harassment which does not relate to a protected characteristic is not covered by the Equality Act.
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 across a wide spectrum of behaviour, ranging from extreme forms of intimidation, such as physical violence, to more subtle forms such as ignoring someone. It can 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? showed that more than half of women overall, and nearly two-thirds of women aged 18-24 years old, had experienced sexual harassment at work. The Women and Equalities Select Committee report Sexual harassment in the workplace includes recommendations.
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, race, religion or belief, sex, sexual orientation and other protected characteristics is covered under the Equality Act 2010.
The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act, including a Code of practice on employment. Whilst not legally binding documents, the codes give important guidance on good practice and failure to follow them may be taken into account by tribunals or courts.
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 always 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 harassment from anyone they come into contact with.
The legal position with respect to bullying is more complex as there is no single piece of legislation which deals with workplace bullying. In the UK, bullying may be covered by:
- the Equality Act 2010, if it is linked to a protected characteristic
- the Employment Rights Act 1996, especially the ‘detriment’ provisions
- claims for breach of an express or implied term of the employment contract - for example, breach of the implied term to take care of employees’ safety or provide reasonable support to ensure they can work without harassment and disruption by fellow workers
- criminal or civil provisions under the Protection from Harassment Act 1998.
Bullying might also be covered by a myriad of other legal principles and laws, for example:
- 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
- protection for whistleblowers under the Public Interest Disclosure Act 1998
- Human Rights Act 1998.
Responsibilities of employers and employees
Bullying and harassment are still a significant workplace issue.
An employer must put in place a robust and well communicated policy and guidance that clearly articulates the organisation’s commitment to promoting dignity and respect at work. 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 for which the employer could be liable.
Importantly, all individuals have a responsibility to behave in ways which support an inclusive and tolerant working environment with zero tolerance for harassment and bullying. 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 know 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.
Developing a culture of respect
Prevention is better than cure and employers should promote a positive culture at work for everyone based on personal respect and dignity, to help prevent inappropriate behaviour in the first place. The organisation should send a clear message to all employees that there is zero tolerance for bullying and harassment. Senior leaders should have a clear vision and demonstrate strong values that communicate what a culture of dignity and respect looks like in practice.
Policies, communication and training
A well-designed policy is essential to tackle bullying or harassment. Policies and any accompanying guidance 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 potential 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, guidance 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 who make a complaint 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 so they can 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 that their behaviour is inappropriate and affecting their colleagues.
Dealing with complaints
All complaints should be dealt with promptly. Some may be dealt with internally and informally. But formal procedures should enable an appropriate manager or someone from HR to take disciplinary steps against perpetrators where needed. 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 work on conflict management shows that a growing number of employers and employees are open to using an independent third party to help resolve workplace conflict. Mediation is a voluntary process and should be used in alleged bullying and harassment cases where both parties are willing to participate and the complaint is not at the serious end of the spectrum
If informal approaches don’t work or aren’t appropriate, 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.
Confidentiality or Non-disclosure agreements (NDAs)
There’s a sharp focus on the use of non-disclosure agreements (NDAs) in cases of alleged harassment or discrimination, and a government consultation on the issue is expected in 2019. Acas has issued revised guidance on settlement agreements stating that confidentiality clauses should only be used when necessary and should not be included in settlement agreements as a matter of course.
Where there’s alleged harassment or discrimination, HR professionals have a responsibility to ensure that any confidentiality clauses in settlement agreements are used ethically and appropriately, and that employees are fully aware of the legal status of such an agreement, including their inability to bring a future claim to an employment tribunal. They shouldn’t be used to cover up cases of alleged discrimination and/or bullying, or to deter a person from reporting misconduct such as making a protected disclosure under whistleblowing legislation. See more CIPD guidance.
Useful contacts and further reading
Books and reports
EQUALITIES AND HUMAN RIGHTS COMMISSION. (2017) Sexual harassment and the law: guidance for employers. Manchester: EHRC.
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.
BURT, E. (2018) Firms reopening historic harassment cases in wake of #MeToo. People Management (online). 13 December.
FOX, R. (2017) Fair investigation of sexual harassment claims. People Management (online). 28 November.
KIRTON, H. (2018) Employers should be duty-bound to prevent sexual harassment, say MPs. People Management (online).25 July.
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. Reviewed in In a Nutshell, issue 71.
Racial harassment in the workplace. (2011) IDS Employment Law Brief. No 937, November. pp12-19.
SUFF, R. (2018) Tackling sexual harassment in workplaces, including Parliament. CIPD Voice. Issue 13, 26 February.
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Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Rachel Suff.