What is bullying?
Bullying is behaviour (be it physical, verbal or non-verbal) that is unwanted or makes someone feel uncomfortable (eg frightened, made fun of or upset).
Examples of workplace bullying include, but are not limited to:
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inappropriate and/or derogatory remarks about a person’s performance
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overbearing and intimidating levels of supervision
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excluding someone from workplace events and/or social functions
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prohibiting someone from attending training courses, but allowing everyone else to
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giving someone a heavier workload than everyone else
Generally, bullying is not any reasonable, legitimate and constructive criticism or comment on a staff member’s performance/behaviour or reasonable instruction given in the course of employment.
What is harassment?
Harassment is unlawful under the Equality Act 2010 and is any bullying or other unwanted behaviour (eg sexual advances) related to at least one of the following ‘protected characteristics’: sex, race, disability, sexual orientation, gender reassignment, religion or belief or age.
Marital or civil partner status and maternity and pregnancy (two other protected characteristics) are not covered by the law on harassment. However, women subject to pregnancy- or maternity-related harassment may be able to claim harassment due to sex.
To amount to harassment, the unwanted behaviour or bullying must:
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violate the person's dignity, whether it was intended or not, or
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create an intimidating, hostile, degrading, humiliating or offensive environment for the person, whether it was intended or not
Unwanted behaviour can amount to harassment if a person:
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is being harassed because they are believed to have a protected characteristic, even if they do not
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is being harassed because they are connected to someone with a protected characteristic
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witnesses harassment (based on someone else’s protected characteristic) and is upset by this (ie a person doesn’t have to be the intended target of the harassment)
Examples of workplace bullying include, but are not limited to:
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use of insults or slurs based on a protected characteristic
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derogatory, offensive or stereotyping jokes or remarks based on a protected characteristic
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racist comments
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mocking, mimicking or belittling a person's disability or accent
What are an employer’s obligations?
Employers should try to prevent bullying and harassment in the workplace. They can be liable for the actions of an employee where there is a case of bullying and/or harassment in the course of employment. However, employers may be able to defend against such liability where they can show that they took all ‘reasonable steps’ to prevent such behaviour. Such reasonable steps may include:
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having an Anti-harassment and bullying policy in place
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regularly reviewing and updating such a policy
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raising awareness of such policies and the consequences of breaching them
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adopting and reinforcing a zero-tolerance approach in the workplace
Receiving a complaint about bullying and/or harassment
Employers should take any complaints about bullying and/or harassment seriously and investigate them. Failure to do so may result in a grievance being raised, or lead to an Employment Tribunal if it's not resolved.
When a complaint about bullying and/or harassment is received, employers should first talk to the person raising the issue to understand more about the complaint, what might resolve it and to determine the next steps (eg if the person wants to deal with the issue formally or informally).
Workplace policies, including an anti-harassment and bullying policy, and/or handbooks should also be checked to determine who should handle this type of complaint and what procedure to follow.
Informal complaints
Dealing with a complaint informally means taking steps to resolve the complaint without using a formal procedure (eg raising a grievance). In some situations, a complaint may be resolved informally by, for example, talking to the people involved. A complaint may be resolved by speaking to the parties separately, meeting with everyone involved (if everyone agrees to try this) or by offering mediation (which involves an independent, impartial person helping both sides to try to find a solution).
If a complaint cannot be resolved informally or the employer or staff member decided to escalate the issue further, a formal complaint can be made.
Formal complaints
To make a formal complaint the formal complaints procedure (eg as set out in an anti-harassment and bullying policy or grievance procedure) should be followed and a neutral party, who is not involved in the complaint, should investigate.
While the complaint is being investigated, it may be necessary to separate staff members involved in the complaint; any changes should be handled fairly. For example, employers may temporarily move one staff member to a different location or shift. Generally, the person who made the complaint should not be moved (unless requested), as this may be seen as a punishment for complaining.
In certain circumstances, it may be necessary to suspend a staff member. However, this should be considered carefully as there may be other appropriate options.
If the outcome of the formal procedure results in disciplinary action being taken against a member of staff, employers should follow their Disciplinary procedure.
After a complaint has been resolved
After an investigation, employers should keep a record of the complaint detailing:
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the complaint made
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any evidence found
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any steps taken to deal with the complaint
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whether the complaint was upheld, and the reasons why
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how the complaint was resolved (if this was possible)
Where a complaint was handled formally, employers should record:
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any investigation findings
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the complaint hearing
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details of any appeals, including the appeal hearing
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any disciplinary action if the complaint resulted in a disciplinary procedure
The employer should also speak to the person who made the complaint and let them know if their complaint was ‘upheld’ and, where relevant, what the next steps will be. If a complaint is upheld, this typically means that the employer has decided that there is enough evidence to:
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recommend actions that need to be taken to resolve the complaint, and/or
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follow up with a disciplinary procedure and consider disciplinary action where appropriate
If disciplinary action is taken, employers should consider informing the person making the complaint what action was taken, where possible.
After a complaint has been dealt with, it’s important to ensure that:
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all unacceptable behaviour or treatment has stopped
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nobody is treated unfairly because they made a complaint
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nobody is treated unfairly because they supported another’s complaint
