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Bullying and harassment

REPOST ARTICLE SOURCE:

http://www.atl.org.uk/publications-and-resources/report/2012/february-legal-bullying-harassment.asp

workplace-bullying-001Bullying and harassment in the workplace are serious matters. All individuals have the right to be treated with dignity and respect, and work in an environment that is free from unlawful discrimination or degrading treatment. It is an employer’s responsibility to take reasonable steps to prevent such behavior taking place and to have policies and procedures in place for dealing with the bullying and harassment of staff.

The terms ‘bullying’ and ‘harassment’ are often used interchangeably and it is not uncommon for bullying to be considered a form of harassment. However, in law they are two very different points.

The Equality Act 2010 defines harassment as: “Unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of… violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for an individual.”

The Act makes it unlawful to harass somebody based on a protected characteristic, ie sex, gender reassignment, race, disability, religion/belief, sexual orientation and age. Harassment of a sexual nature is also unlawful.

Conduct that is likely to amount to harassment could include workers making racial jokes or slurs about another employee, or an employee making unwanted sexual advances towards another worker.

Harassment does not necessarily have to be directed at an individual. The Equality Act 2010 ensures that indirect victims (those not personally subjected to the unwanted conduct) are also afforded the protection of the law.

The main difference between bullying and harassment is that conduct will only amount to harassment if it is done for a prohibited reason (eg sex, race, etc), while bullying is indiscriminate and can manifest in many different formats. There is no single legal definition of bullying. However, the Advisory, Conciliation and Arbitration Service (ACAS) defines it as: “Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.”

Conduct that may amount to bullying could be:

  • spreading malicious rumours, or insulting someone by word or behaviour
  • ridiculing or demeaning someone — picking on them or setting them up to fail
  • exclusion or victimisation.

Bullying and harassment can occur in many different forms. It could be conduct carried out by a colleague or someone with more authority, such as a line manager; it could be a single incident or series of incidents that are attributable to one person or a group of people. However such conduct materialises, it has the common theme of humiliating or degrading the recipient.

In law, the difference between bullying and harassment is an important one as what amounts to bullying may not amount to harassment. There is no stand-alone claim for bullying and harassment. As the legal definition of harassment refers to behaviour stemming from an individual engaging in prohibited conduct, a tribunal can only hear claims that are brought on grounds that unlawful discrimination has occurred. Therefore, just because an employee has been subjected to bullying, it will not automatically mean there is a legal remedy available to them.

If the treatment suffered by the individual cannot be linked to unlawful discrimination, the individual may consider resigning and claiming constructive dismissal. Constructive dismissal occurs where an employee resigns, either immediately or after giving notice, as a result of a serious breach of contract. However, such claims are notoriously difficult to win and advice should always be sought from ATL before resigning.

Claims in relation to bullying and harassment can also be brought under the Protection from Harassment Act 1997, the Health and Safety at Work etc Act 1974, or as a personal injury claim. However, it should be noted there are numerous legal hurdles to overcome if a claim is to be successful via one of these courses of action.

Pursuing a legal claim in relation to bullying and harassment can be difficult and often only serves to add to the stress an individual may already be experiencing. With this in mind, ATL would always advise that efforts are made to try and resolve matters internally. It may be that the perpetrator is unaware of the effect their conduct is having on an individual and an informal conversation may lead them to adjust their conduct. If this doesn’t work then one may wish to consider taking formal action and using the grievance procedure.

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