from the CIPD Factsheet August 2009
In their advice leaflet for employees
ACAS give the following definitions of harassment and bullying.
The terms are used interchangeably by many people, and although
some definitions may include bullying as a form of harassment the
legal definitions are more precise.
'Harassment, in general
terms, is unwanted conduct affecting the dignity of men and women
in the workplace. It may be related to age, sex, race, disability,
religion, sexual orientation, nationality or any personal characteristic
of the individual, and may be persistent or an isolated incident.
The key is that the actions or comments are viewed as demeaning
and unacceptable to the recipient.'
'Bullying may be characterised
as offensive, intimidating, malicious or insulting behavior, an
abuse or misuse of power through means intended to undermine, humiliate,
denigrate or injure the recipient.'
The legal definition of harassment
also requires the behavior to have 'the purpose or effect of violating
people's dignity or creating an intimidating, hostile, degrading,
humiliating or offensive environment.'
THE LEGAL POSITION
Since October 2006 UK discrimination
law has covered harassment on a variety of grounds including age,
disability, colour, ethnic or national origin, race, religious belief
or other similar philosophical belief, sex and sexuality.
Individuals are protected from discrimination
both while applying for a job, during it, and in some circumstances,
after the working relationship ends (for example in terms of the
provision of a verbal or written reference). There is also protection
for people against harassment on the basis of their membership or
non-membership of a trade union and, in Northern Ireland, against
harassment on the basis of political belief.
The legal position with respect
to bullying is more complex as there is no separate piece of legislation
which deals with work place bullying in isolation. If bullying occurs
at work for a non discriminatory reason then there still is legal
protection available. However, a myriad of different legal principles
may be involved, for example:
breach of contract - usually breach
of the implied term that an employer will provide reasonable support
to employees to ensure that they can carry out their job without
harassment and disruption by fellow workers
Common Law right to take care of safety of workers
Employment Rights Act 1996 (for example constructive unfair dismissal)
personal injury protection involving the duty to take care of workers
arising out of the law of Tort
Health and Safety at work etc Act 1974
Trade Union and Labour Relations (Consolidation) Act 1992 (dealing
with special types of intimidation etc)
Protection for whistle blowers under the Public Interest Disclosure
Criminal Justice and Public Order Act 1994
Public Order Act 1986.
Protection from Harassment Act 1997
Human Rights Act 1998.
SEX AND SEXUAL HARASSMENT
In April 2008, the Sex Discrimination
Act was further amended to change the definition of sex harassment
and to expressly include employer liability for third party harassment.
The difference between sex harassment and sexual harassment is that
sex harassment occurs where there is unwanted conduct related to
the sex of a person with the purpose or effect of violating their
dignity, and creating an intimidating, hostile, degrading, humiliating
or offensive environment. By contrast, sexual harassment occurs
where a person subjects another to unwanted verbal or physical conduct
of a sexual nature (for example pinching a colleague's bottom or
making lewd comments) again with the purpose or effect of violating
the dignity of a person, and creating an intimidating, hostile,
degrading, humiliating or offensive environment.
THIRD PARTY HARASSMENT
Within the context of some of the
discrimination legislation employers may be liable if they unreasonably
fail to protect employees from third party harassment, for example
by clients or customers. The employer is only
liable if they knew that the woman or man has been subject to such
harassment in the course of their employment on at least two other
occasions by a third party. It is immaterial whether the third party
is the same or a different person on each occasion.
WHAT DO HARASSMENT AND BULLYING
Bullying or harassment may be by
an individual against an individual (perhaps by someone in a position
of authority such as a manager or supervisor) or involve groups
of people. It may be obvious or it may be insidious.
Harassment and bullying can range
from extremes such as physical violence to less obvious forms like
ignoring someone. It can be delivered in a variety of ways –
with or without witnesses, and be persistent behaviour over a period
of time, or a one-off act and can include: physical contact which
is unwanted, unwelcome remarks about a person's age, dress, appearance,
race or marital status, jokes, offensive language, gossip, slander,
sectarian songs and letters, posters, graffiti, obscene gestures,
flags, bunting and emblems, isolation or non-cooperation and exclusion
from social activities, coercion for sexual favors, pressure to
participate in political/religious groups, intrusion by pestering,
spying and stalking, failure to safeguard confidential information,
shouting at staff, setting impossible deadlines, persistent criticism,
EMPLOYERS AND EMPLOYEES HAVE
Tackling workplace bullying and
harassment is a joint responsibility of the organisation and individuals
working within it.
An employer’s first responsibility
is to put in place a robust and well communicated policy that clearly
articulates the organisation’s commitment to promoting dignity
and respect at work - see below for further details of the content
Individuals also have a responsibility
to behave in ways which support a non hostile working environment
for themselves and their colleagues. They should play their part
in making the organisation’s policy a reality and be prepared
to challenge inappropriate behaviour and take action if they observe
or have evidence that someone is being harassed. Individuals can
be personally liable to pay compensation and can be prosecuted under
criminal as well as civil law.
Findings from a 2009 CIPD survey
showed that those who experience bullying or harassment are more
likely to be depressed and anxious, less satisfied with their work,
to have a low opinion of their managers and senior managers and
to want to leave their organisation. Employers’
responsibilities may extend to any environment where work-related
activities take place. These can include social gatherings organised
by the employer such as work parties or outings. An employer could
be liable for events which take place on these occasions unless
they can show they took reasonable steps to prevent harassment.
Employers should be especially aware
of ‘Cyber-bullying’. Detrimental texts
sent via mobiles or images of work colleagues posted on external
websites following work events could amount to bullying. As this
would be seen to have its origins in the workplace, the employer
could be liable.
Employers and individuals can be
ordered to pay unlimited compensation where discrimination-based
harassment has occurred, including the payment of compensation for
injury to feelings.
WHAT ACTIONS ARE NEEDED TO
and training are essential. A well-designed policy is essential
in addressing harassment. Policies should be agreed with union or
Give examples of
what constitutes harassment, bullying and intimidating behaviour
including cyber-bullying, work-related events and harassment by
third parties, explain the damaging effects and why it will not
be tolerated, state that it will be treated as a disciplinary offence,
clarify the legal implications and outline the costs associated
with personal liability, describe how to get help and make a complaint,
formally and informally, promise that allegations will be treated
speedily, seriously and confidentially and that you prevent victimization,
clarify the accountability of all managers, and the role of union
or employee representatives, require supervisors/managers to implement
policy and ensure it is understood, emphasize that every employee
carries responsibility for their behaviour.
should be communicated so that all employees:
Have been made aware
– through induction, training and other processes - about
their rights and personal responsibilities under the policy understand
the organisation’s commitment to deal with harassment are
aware of who to contact if they want to discuss their experiences
in order to decide what steps to take, know how to take a complaint
forward and the timescales for any formal procedures. The policy
should be monitored and regularly reviewed for effectiveness, including:
records of complaints, why
and how they occurred, who was involved and where individual complaints
to ensure resolution and no victimization. (Any such ‘dignity
at work’ or anti-bullying policy should be co-ordinated with
the organisation’s grievance and disciplinary policy which
may be needed to deal with incidents which arise.)
All employees should
have access to speak in confidence about an issue they may have.
This could be an employee helpline or a nominated person, who may
be a trained volunteer colleague, to discuss their experiences in
the strictest confidence. This can help complainants decide what
course of action to take by exploring their options. The decision
to progress a complaint should rest with the individual.
Mediation is an
increasingly useful tool in managing conflict at work, including
harassment issues where difficult personal issues are involved,
and it is often one individual’s word against another’s.
Mediators can come from outside or inside an organisation. A CIPD
recent survey on conflict management at work shows however that
only one in four organisation's use internal mediation. The survey
also provides evidence that organisation's that provide mediation
training receive fewer tribunal claims than those that don't.
Guidance and counseling
can be offered to people whose behaviour is unacceptable, as well
as those affected by being harassed. Simply punishing those responsible
for the harassment risks isolating individuals who may not understand
how their behaviour is affecting their colleagues. Sometimes people
are unaware of, or insensitive to, the impact of their actions and
counseling can help them to accept the impact of their behaviour,
change behaviour or prevent further incidents. Being clear about
what is acceptable behaviour at work, as well as defining unacceptable
behaviour, will prevent ambiguity and stop harassment flourishing.
Some complaints may be dealt with internally and informally. In
some minor cases it may be sufficient for the recipient of harassment
to raise the problem with the perpetrator, pointing out the unacceptable
behaviour. But if an employee finds this difficult or embarrassing,
procedures should enable support from a colleague, an appropriate
manager or a personnel department representative. A choice of contact
should be available in case the person's manager is the harasser.
are needed if the harassment is serious, if it is the individual’s
preference or where an informal approach has failed. Organisation's
should have a clear formal policy to deal with all types of grievances
and disciplinary issues including bullying and harassment and this
should comply with the ACAS Code of Practice on
disciplinary and grievance matters.
of harassment, bullying or any intimidating behaviour should be
treated as a disciplinary offence. Investigation procedures should
prompt, thorough and impartial response
independent, skilled and objective investigators
a companion for both parties if required
complaint details, the right to respond and adequate time to respond
a time-scale for resolving the problem
confidentiality in the majority of cases.
A record of complaints and investigations should always be made.
These should include the names of the people involved, dates, the
nature and frequency of incidents, action taken, follow-up and monitoring
information. All sensitive information should be treated confidentially
and meet the requirements of the data protection law.
After the procedure :
Where a complaint is upheld it may be necessary to relocate or transfer
one party. It should not automatically be the complainant who is
expected to move, but they should be offered the choice where practical.
Where the perpetrator is transferred, no breach of contract must
occur or a claim of constructive unfair dismissal could arise. Although
not always necessary, if a complaint is not upheld, a voluntary
transfer of one of the employees may be offered if required. These
must be consensual and dealt with on a case by case basis and if
no move of either party is to take place it is important to check
the harassment has stopped and there has been no victimization or
'Achieving high levels of performance
from people at work is essential in today’s competitive market
place. Organisation's should treat any form of harassment or bullying
seriously not just because of the legal implications, but because
it can lead to under-performance at work. Eliminating all forms
of harassment and bullying makes good business sense. A workplace
environment which is free from hostility enables people to contribute
more effectively to organisational success and to achieve higher
levels of job satisfaction. People cannot make their best contribution
when under fear of harassment, bullying or abuse.
An organisation’s public image
can be badly damaged when incidents of harassment occur, particularly
when they attract media attention. This can affect relationships
between an employer, their current and future employees, as well
as their customers. Organisation's must address the human or systemic
failures that may foster a climate where bullying is acceptable.
The conflict which harassment creates
should not be underestimated. Employees can be subject to high levels
of stress which can reduce engagement and may lead to higher labour
turnover, increased sickness absence and less productive and effective
teams. Find out more about stress in the workplace in our (CIPD)
An organisation’s public
image can be badly damaged when incidents of harassment occur, particularly
when they attract media attention. This can affect relationships
between an employer and their current and future employees, as well
as their customers.
An organisation’s goal should
be to develop a culture in which harassment is known to be unacceptable
and where individuals are confident enough to bring complaints without
fear of ridicule or reprisal. Everybody needs to feel responsible
for challenging all forms of harassment and for upholding personal
For further guidance on how to promote
a positive culture at work and identify the key issues and people
that need to be addressed, CIPD members can use a new practical
tool on addressing workplace bullying'.
ACAS, Department for Business, Innovation and Skills (BIS), Equality
and Human Rights Commission
1.ACAS. (2009) Bullying and harassment at work: guidance for employees.
London: Acas. Available at: http://www.acas.org.uk/index.aspx?articled=797
RECESSION SUGGESTIONS FOR
We appreciate that the UK economy goes
through a recession from time to time. This impacts on SME's and
Employers. It is only natural that employers will be looking to
make cut-backs at times such as these. Here are some tips before
you make changes that have a Contractual bearing:
find out what other employers are doing to address the recession.
- Ensure there is a Variation
Clause in your staff contracts before making changes
that will impact on contractual terms (such as altering shift
patterns, cutting hours etc). Consider the risk to the business
of constructive dismissal. Constructive dismissal compensation
is £63,000 presently - and that does not include the hidden
costs such as legal fees, disruption to the business, management
- Consider Equality and Fairness
procedures. Do not discriminate. Ensure management decisions
are sound and are neither selective nor biased. Document decisions
and ensure the business case is lawful.
- Ensure Statutory and in-house
Policies are followed and that you adhere to change management
processes if you do need to make adjustments. Consult and involve
Trade Unions or Works Council's where relevant.
- Seek employee involvement
at the outset; Ask the workforce for ideas. Introduce
an Employee Reward scheme for 'cost cutting ideas' that are implemented
and prove effective!
- Ask staff whether they would be
prepared to take a temporary pay reduction as
an alternative to facing a redundancy process. This is not an
unreasonable request right now. This reduction should be % based
so that those on a lower income are not overly stretched financially
at this difficult time.In return for cooperation,
reward loyalty with bonuses and other incentives when business
picks up and when the UK economic recession improves.
- Consider career breaks
or sabbaticals (staff take an unpaid holiday
but do not lose their job). This gives staff an opportunity to
travel or take an extended break.
OTHER IDEAS FOR CUTTING COSTS
- Address performance, SMART
working and overall productivity. Ensure it does not slip.
- At the same time, observe
STRESS levels. See LAW section; Dickins
- Place a freeze on recruitment.
- Place a freeze on hiring temporary
- Place a freeze on overtime - keep
- Place a freeze on advertising.
- If someone resigns, conduct a thorough
and documented process to assess the necessity to re-employ. Consider
a job share or a restructure at this time.
- Address training needs presently.
Without compromising the business, place a temporary freeze on
training that can wait 6 months.
- Cut excessive and/or unnecessary
executive bonuses and expenses.
- Consider a Utility Operational review;
send all post out second class (it will still get there). Switch
off lights and computers at night and when the office is unattended.
- Sorry folks, cancel that Xmas party
- at least put it on hold. Consider a summer BBQ instead.
become dire, seek voluntary redundancies before embarking on a heavy
handed downsizing exercise.