Take a zero tolerance approach to workplace bullying and harassment, advises lawyer

Nov 11, 2017

High-profile cases include the suspension of Radio 5 Live presenter George Riley by the BBC following accusations of sexual harassment; the Football Association penalised for failure to properly deal with allegations of racially discriminatory remarks made by ex-England women’s manager Mark Sampson and the resignation of Defence Secretary Sir Michael Fallon. 

Employers are responsible for preventing bullying and harassment in the workplace and can be liable for any harassment suffered by their employees.

Having up to date policies and procedures can help prevent problems occurring and provide a framework for dealing with complaints. 

Paula Bailey pictured, Howes Percival partner and employment law expert, said: “Harassment and bullying in the workplace is not a new problem. Many employers have had policies and procedures in place for years and believe that they are doing everything necessary to comply with their legal obligations.

“However, with recent media attention surrounding allegations of harassment against high-profile employers and individuals, employers have received a hard-hitting reminder of the serious and potentially damaging implications of becoming complacent and failing to properly manage inappropriate workplace behaviour. 

"Employers should take a zero tolerance approach to bullying and harassment in the workplace and, they should be mindful that one employee’s ‘office banter’ may be considered offensive harassment by another.

“Employers should take any concerns raised by employees seriously and deal with them appropriately. Dealing with complaints quickly and effectively is key to restoring positive workplace morale and productivity." 

Implications for failing to address inappropriate behaviour

Under the Equality Act 2010, employers are liable for acts of discrimination (including harassment) committed by employees in the course of their employment unless the employer has taken all reasonably practicable steps to prevent the discrimination/harassment complained of.

Not only will the employee who has committed any acts of discrimination be personally liable, employers will also be liable.

Compensation in relation to discrimination claims is uncapped and therefore discrimination claims can be costly. 

In addition to the cost of legal claims and adverse PR risk, there will inevitably be other implications for employers including potentially the cost of sick leave if a harassed employee is signed off work due to stress, the cost of replacing staff, lost productivity and lost time of managers and employees dealing with a complaint or investigation. 

What is ‘inappropriate behaviour’?

Inappropriate behaviour in the workplace can take an array of forms, whether it be harassment related to sex, race, religion or belief, sexual orientation, age, disability, gender reassignment, for example, or sexual harassment or bullying. 

The important thing to understand is that when dealing with allegations of harassment, it is the perception of the recipient that is important, provided that perception is reasonable.

It is the effect that the behaviour has on the victim as opposed to whether the perpetrator intended his/her behaviour to have that effect, which is key.

So it is vital that, if an employee raises concerns about an employee’s or third parties’ behaviour, the employer takes the allegations seriously and deals with them appropriately. 

Appropriate Action

If inappropriate behaviour is detected or reported employers need to act swiftly, consistently, and in accordance with their policies.

Depending on the severity of the allegations, it may be that the matter can be dealt with informally. However, if the alleged misconduct is serious, the employer will need to deal with the matter formally and commence a full and thorough investigation. 

If after investigation, it is considered that there is a case for the alleged perpetrator to answer, then the matter should be dealt with via the disciplinary procedure. In serious cases, it may be that the matter can be treated as gross misconduct and it may be that there are sufficient grounds to terminate the employee’s employment summarily without notice or payment in lieu of notice. 

Pro-Active Management

The best approach is to adopt a preventative strategy. Steps for employers to consider include: 

  • Ensuring that you implement or review your policies and procedures including anti-harassment and bullying procedures, grievance and disciplinary procedure, and equality and diversity policy and procedure and any and all other relevant policies.

Make sure these are robust and up to date and that staff are aware of the expectations on them and what behaviour will not be tolerated, both in the workplace and outside of work at work-related events such as Christmas parties.

  • Ensuring that staff are inducted and trained on your policies and procedures on a regular basis. 
  • Regularly reviewing your complaints and grievances records: patterns of behaviour in particular departments or by particular employees that you can pro-actively address may become apparent. 
  • Encouraging employees to come forward by ensuring that you have appropriate complaints mechanisms in place: many victims of bullying and harassment are apprehensive to report inappropriate behaviour. 
  • Regularly reviewing your policies, procedures, training and complaints to ensure that you are doing all that you can to prevent discrimination, including in relation to third parties who may come into contact with your employees.  
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