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Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority, but can include both personal strength and the power to coerce through fear or intimidation.
Bullying can take the form of physical, verbal and non-verbal conduct. Bullying may include:
(a) physical or psychological threats;
(b) overbearing and intimidating levels of supervision;
(c) inappropriate derogatory remarks about someone's performance.
Harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A single incident can amount to harassment.
It also includes treating someone less favourably because they have submitted or refused to submit to such behaviour in the past, and unlawful harassment may involve conduct of a sexual nature (sexual harassment), or it may be related to age, disability, gender reassignment, marital or civil partner status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief, sex or sexual orientation, and it is unacceptable even if it does not fall within any of these categories.
Harassment may include, for example:
(a) unwanted physical conduct or "horseplay", including touching, pinching, pushing and grabbing;
(b) unwelcome sexual advances or suggestive behaviour (which the harasser may perceive as harmless);
(c) offensive e-mails, text messages or social media content;
(d) mocking, mimicking or belittling a person's disability.
A person may be harassed even if they were not the intended "target". For example, a person may be harassed by racist jokes about a different ethnic group if the jokes create an offensive environment.
It is a fact that Employers have a number of implied duties in the employment contract, including a duty to provide a safe and suitable working environment, a duty not to destroy mutual trust and confidence, and a duty to provide redress of grievances. There is also a common law duty to provide a safe system of work and in certain circumstances this can extend to liability for psychiatric illness if it is reasonably foreseeable, something that came into the spotlight with stress at work cases in the late 1990s.
Whilst there is no ‘legal’ requirement that Employers have a written policy on bullying and harassment, UK employment case law suggests that having a policy helps establish a ‘reasonable steps’ defence to an employment tribunal claim under discrimination legislation, which in simple terms means the employer can show an Employment Tribunal it did everything within reason to prevent bullying and harassment within the workplace.
Employers that fail to protect their employees and other workers may be liable under the Equality Act 2010 (EqA 2010).
The European Convention on Human Rights (ECHR) suggest that a harassment policy should:
(a) Have clear rules for conduct and grievance and disciplinary procedures that set out how employee complaints about breaches of the rules will be handled;
(b) Make it clear that harassment will be treated as a disciplinary offence;
(c) Clearly explain how a worker or job applicant can make a complaint, informally and formally;
(d) Make it clear that complaints of harassment will be dealt with within a reasonable time, treated seriously and confidentially, and that someone complaining will be protected from victimisation;
(e) Describe what support is available to a worker or applicant if they think they are being harassed, for example, counselling or a worker assistance programme;
(f) Describe any training/other resources available for workers to help them spot and stop harassment;
(g) Describe how your policy will be implemented, reviewed and monitored;
(h) Build in a review process; this is particularly important if someone has complained of harassment, as you will need to make sure that your policy was effective in dealing with the incident.
The National Bullying Helpline (Tel 0845 22 55 787) website includes a section for employers full of helpful tips and information. http://www.nationalbullyinghelpline.co.uk/employers.htm
If you need advice or assistance regarding workplace bullying and harassment, or any other employment contract, employment law or HR matters, contact EmployEasily Legal Services today. We serve employers throughout the UK, from Inverness to London, and can help you make sure the employment relationships you form comply with the law, allowing you to focus on the running of your business. Contact us today on 0800 612 4772 for a free, no obligation consultation.