What it is
Definitions of these phenomena have varied over the years as interested bodies and legislators have struggled to find workable descriptions. However, we now have a clear legal definition of harassment in the Equality Act 2010:
Harassment is unwanted conduct related to a relevant protected characteristic [see later], 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 (Equality Act 2010).
Although the Equality Act does not define bullying, it might be reasonably well defined using the above but simply removing the words: “related to a relevant protected characteristic”. There are however additional, more subtle forms of bullying to which we will refer in a minute.
The Act also lists the relevant “protected characteristics” as: Race, including colour, nationality, ethnic or national origin; Sex; Disability; Age; Religion or belief; Sexual orientation; Gender re-assignment.
Unwanted conduct is principally judged by the recipient of the conduct. So if they don’t want body contact, to see adult images or receive flirty innuendos then the conduct is just that, unwanted. In many cases, the unwanted nature will be more obvious, such as being the butt of jokes or insults. But a single instance of unwanted contact can be sufficient to bring and even win a tribunal claim.
Bullying can be more subtle: marginalisation, either socially or in assignment of work, unconstructive criticism, and role ambiguity can all be forms of bullying, although less subtle actions such as shouting at an employee or humiliating or intentionally embarrassing an employee are also examples of bullying behaviour.
What it costs
One of the reasons for its prevalence is that the costs do not show up in any obvious way on the balance sheet. But the bottom line is affected.
Dysfunctional working relationships are arguably the largest costs and they may be hidden, as indeed bullying and harassment itself may be hidden, from the senior management or owners. Where they do show up, the signs are low staff retention, high absenteeism and poor performance. In the latter case, that can be low performance from individuals or teams. Frequent grievances, negligent behaviour and lack of commitment can be other symptoms. The cost of lost productivity, of over-frequent recruitment and the time spent in resolution of issues such as poor attendance can be difficult to assess.
What are easier to assess and more difficult to ignore are the costs of employment tribunal claims that may arise from ignoring these signs. But in reality these are likely to be the far smaller cost to the employer, even though when they do arise they can be long drawn out and tortuous and therefore costly whether won or lost. We might be comparing the £20,000 in legal costs (and about the same in disruption costs) once in a decade against a 10% or more loss in overall productivity day in and day out.
The legal position
If, as an employer, you allow a situation where an employee or group of employees is harassed then you could, as suggested, face an employment tribunal claim for discrimination. The employee does not need to leave your employment to do so and, whether a continuing employee is successful or not, you cannot “victimise” the employee for bringing a claim.
The effect of the Equality Act is that harassment related to one of the relevant characteristics is directly protected in law and, in theory at least, other forms of harassment, including bullying, are not.
But, in any event an employee can leave and bring a constructive dismissal claim against you for breaking their employment contract (e.g. by allowing the intolerable behaviour). While it is quite difficult for an ex-employee to establish a constructive dismissal claim successfully, that doesn’t always inhibit them from trying.
The really bad news is that if you do get a claim then you may be wiser to seek a settlement than to seek to fight it. A typical unfair dismissal claim can be “done and dusted” in a day. Claims under the Equality Act may take weeks. Furthermore, with unfair dismissal, any award is limited to £87,700 as a maximum, whereas with discrimination claims (e.g. for harassment) there is no upper limit. We have already alluded to the potential legal costs.
Notwithstanding employees seeking remedy via an Employment Tribunal, there may be other forms of redress that aggrieved employees might seek, such questioning “fitness to practice” at the General Medical Council.
What employers can do
Step one must be to have a policy on the matter within your employee handbook. That needs to include a procedure as to how you will investigate and handle any complaints.
There are a variety of ways in which you can support an employee who wishes to complain about bullying or harassment. It may seem odd to encourage such complaints, but it is far better to be aware of what may be going on than to seek to brush it under the carpet. A good procedure should ensure that the latter does not happen.
In any case, watch out for the signs as indicated above. If the indicators are adverse under one particular manager or supervisor then this could indicate a problem. Be alert to how an employee or employees might be described by a supervisor. Use of derogatory terms indicates disrespect and should flag up a warning.
Those on the receiving end of bullying behaviour should be supported, but it is important to recognise that bullying can go in two directions, from the bottom up as well as from the top down.
Remember that bullying is a behaviour – that is it can be changed – it is not a personality defect. Even the words “he/she is a bully” should be avoided as it labels the individual; similarly reference to a “victim” is unhelpful too. He or she may also have behaviour that merits addressing.
Bullying (and harassment) is an indicator of inadequacy. It can be addressed through training (many managers find supervising people to be very difficult), through team building activities or where individuals have personal limitations through techniques such as neuro-linguistic programming, assertiveness training or cognitive behaviour therapy.
Peer to peer harassment might be addressed through a disciplinary procedure.
However, it is probably more productive to seek to change the behaviour of the person accused of bullying, than to seek to change the behaviour of the person who feels bullied. The latter may not always be entirely innocent in what is after all a human interaction.
In any case it is wise not to prejudge situations.
Finally, all employees deserve to enjoy their work. That cannot be guaranteed, but tackling bullying or harassment where it occurs is an essential step in the right direction. The increased productivity will appear in the bottom line even if it is not clear how.
Malcolm Martin – QCS Expert Contributor on Human Resources
