Bullying and harassment are terms which are used interchangeably, however they are not the same when it comes to your employment law rights. Both can, however, occur at any time, whether in person, in writing, phone or via social media or other online.
What is workplace bullying?
Although there is no legal definition of bullying, workplace bullying is often defined as offensive, intimidating, malicious, insulting or humiliating behaviour, or an abuse of power or authority which attempts to undermine an individual or group of employees, and which may cause them to suffer work related stress.
Some of the classic signs of bullying include:
- being frozen out of meetings which you would normally be expected to attend;
- having people who would normally report to you taken away;
- exclusion from meetings, emails, lunches or other office gatherings;
- being picked up on your performance, or being given a poor appraisal which is unwarranted;
- having your promotion or training opportunities blocked;
- being constantly threatened about your job security.
What is harassment?
Harassment, as defined in the Equality Act 2010 is unwanted conduct related to a relevant protected characteristic, 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.
The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
Under the Equality Act, employers are also responsible for their staff who harass other employees, but can escape such liability if they can demonstrate that they took reasonable practical steps to prevent the harassment from happening.
Some of the classic signs of harassment include:
- unwelcome sexual advances – touching, standing too close, the display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected;
- derogatory homophobic comments being made about you;
- being frequently teased and humiliated about a disability that you have.
Sexual harassment is also a separate right of action under the Equality Act.
What about “the banter excuse”?
A lot of managers use the “banter excuse” as a defence to bullying especially in industries where banter is commonplace- such as the finance and banking sector. Banter is all well and good and an employee cannot complain whilst they are a party to it. It is a different matter however, where someone crosses the line and makes it personal to the obvious distress of the recipient of the banter. In those circumstances, the banter can turn into a case of bullying or harassment. It is not always clear where the line is drawn, but if you make it clear that the other person has gone too far- that is a sensible starting point as to whether that banter has then crossed the line.
What about the “constructive criticism” excuse?
Many managers will use the defence that they were simply giving “constructive criticism” or acting in a way necessary for firm management. This may be true, although there are occasions where a manager’s “firm management” and criticism cross the line of acceptability. Examples of what is considered unacceptable behaviour that cannot be justified with “constructive criticism” are; aggressive behavior, personal insults, and unfair allocations of blame.
What should you do if you are being bullied or harassed in the workplace?
If you are being bullied or harassed at work, you should first consider whether the situation can be resolved informally. You could discuss your concerns with your line manager, HR, a union official, or even the person who is bullying you (if you are able to). It may even be the case that other colleagues are experiencing a similar treatment, so it can also be helpful confide in certain colleagues as to what is going on.
It is advisable to keep a diary record of every event in which you feel bullied or harassed, as well as any emails and other written communications which demonstrate the unwanted conduct. This evidence will not only be useful when you are required to recall instances of bullying, but can also show that a series of isolated instances (which can often appear ‘trivial’) are actually part of a more serious campaign against you.
If you cannot resolve matters informally, then you should lodge a formal internal grievance. Your employer should then investigate the allegations in your grievance and hold a meeting to discuss the same. A decision will then be made whether or not to uphold the grievance and you will be given the right to appeal.
Many people will seek legal advice before a grievance is lodged, and this is a sensible time to do so, as there are other options available (see below).
There will also be many who are suffering with stress and anxiety because of the bullying they have sustained, and in those circumstances, will be signed off work by their GP. If your employer hasn’t appreciated the impact of the unwarranted behaviour before, they certainly will when you send in your medical certificate.
The Chartered Institute of Personnel and Development has published a study regarding bullying in the workplace, which shows that 13% of employees reported having experienced bullying or harassment in the previous 12 months. This should give you confidence that you are not alone in what you are experiencing.
Negotiating a exit from your employer with a financial package.
We have acted for thousands of employees in negotiating an exit with a financial lump sum, where the relationship has clearly broken down. This is a sensible option for both employer and employee, however the foundation of any negotiations has to be based on a potential legal claim (such as constructive dismissal).
A settlement will include your notice and will usually also provide for a further tax free enhanced payment, together with a job reference. If you are already signed off work, you would simply not return once the settlement is concluded- indeed, many find it impossible to return in the first place.
Once terms are agreed, your employer will almost certainly insist that you enter into a binding settlement agreement to prevent you from later making any legal claim. This is entirely usual.
Making a legal claim for bullying & harassment
A claim can be made to the employment tribunal for damages if you have suffered from harassment. You also have the option of resigning and claiming constructive dismissal. To do so, you would need to show that the mutual trust and confidence has broken with your employer, and it is untenable for you to continue working as a result.
Although it is not possible to make a claim directly for “bullying” on its own, you can (similar to harassment situations) make a claim for constructive dismissal where your employer’s actions fundamentally breach the trust and confidence between you.
There is no qualifying period of employment required to make a claim for harassment, however you do need to be employed for 23 months and 3 weeks (and not have already received notice) in order to qualify in making a claim for constructive dismissal. You would usually be expected to lodge a grievance before resigning.
Professional advice should always be sought before you take any steps to resign and make a constructive dismissal claim if possible.
The start of the process in making a tribunal claim for harassment must start within 3 months (less one day) of the last discriminatory act, in which you must notify ACAS under their early conciliation process. For constructive dismissal claims, the same process needs to be started within 3 months less one day from your last date of employment (this is usually the last date that you have been paid). It is far better to negotiate severance terms, however. Please contact us if you would like further information on this.
Harassment (under the Protection from Harassment Act) 1997
You also have the right to make a claim under the Protection from Harassment Act 1997 through the civil courts, although this is a rare and expensive process. Any claim would need to be brought within 6 years of the last act of harassment. There would also have to be a “course of conduct” which means a sustained campaign-not a one off incident. The threshold for conduct which will amount to harassment under the Act is very high as the courts have ruled that the gravity of such conduct needs to be severe.
You would need to prove that your employer knew or ought to have known that that the conduct amount to harassment. The relevant test is “whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”
Examples of claims which can be made through the courts include:
- unwanted physical contact;
- personal insults, unwelcome remarks about age, dress, appearance, race or marital status, offensive language, gossip, slander;
- posters, graffiti, obscene gestures, flags, bunting and emblems;
- isolation or non-cooperation and exclusion from social activities;
- coercion for sexual favours;
- pressure to participate in political/religious groups;
- personal intrusion from pestering, spying and stalking;
- failure to safeguard confidential information;
- shouting and bawling;
- setting impossible deadlines;
- persistent unwarranted criticism.