Managing allegations sensitively and confidently is critical
Undetected or unresolved bullying at work can have a detrimental impact on employee morale and performance, absence levels, and staff turnover, and if employers fail to manage allegations appropriately, they could face claims for constructive dismissal, breach of contract, or negligence claims (which could include damages for psychiatric injury). If the bullying relates to a protected characteristic, such as sex or age, employers may also face a discrimination claim.
Encouraging employees to raise matters informally in the first instance can be an effective way of managing bullying allegations, allowing both employees involved to engage in open conversations, unrestrained by the bureaucracies of a formal procedure. Of course, sometimes a more formal route will be appropriate, but where this is the case, employers still need to take steps to keep the employees involved informed throughout the investigation and any subsequent disciplinary procedures.
While most employers deal with allegations of bullying by adopting a ‘no tolerance’ approach and focusing on disciplining the bully, the complainant’s needs should remain central during the investigation and when considering an appropriate disciplinary outcome. Handling the matter sensitively and confidentially is the key to ensuring complaints are resolved as effectively as possible.
A bullying and harassment policy should set out what kind of behaviour constitutes bullying so there is no scope for confusion about what is and what isn’t acceptable behaviour. There is no legal definition of bullying, but the Acas guide on bullying and harassment at work says it is “offensive, intimidating, malicious or insulting behaviour; an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”. However, it clarifies that any worker complaining he or she has been bullied will potentially have a grievance, even if their complaint does not meet a standard definition.
Harassment is a clearer concept in law. The Protection from Harassment Act 1997 prohibits conduct that causes alarm or distress, but to fit the legal definition there must be a “course of conduct which amounts to harassment of another” on at least two occasions. Case law has established that even a seemingly innocuous comment can amount to a “course of conduct” for the purposes of the Act, if it can be taken in context with other comments or actions. Employees have six years in which to bring a claim.
Harassment is also defined in the Equality Act 2010. Here it 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”.
Essentially both harassment and bullying are wide concepts in law, covering a range of behaviours, and it is advisable for employers to include specific examples in their policies. The policy should also make it clear (possibly by referring to the employer’s grievance and/or equal opportunities policies) how to raise a complaint, how allegations will be investigated and how misconduct will be dealt with.
Employees should not be put off from raising concerns about bullying. Employers should state explicitly that those involved in a bullying investigation will not suffer any form of retaliation or victimisation (unless complaints are raised maliciously). Ensuring confidentiality is important, although often it can be difficult to give absolute assurances about this. Organisations can make it clear that details of the investigation and the names of those involved will only be disclosed on a "need to know" basis, but they need to bear in mind that an individual against whom a complaint is raised also has the right to understand the nature of the complaint and the evidence against him or her so they can defend themselves as necessary. Anonymised statements are often a reasonable compromise.
Dealing with complaints sympathetically and sensitively will make a stressful and difficult process considerably easier for both the accuser and the accused. All parties should have adequate support both during the process and following the outcome. Employers could offer confidential counselling services, or mediation where an ongoing relationship between the parties is desirable. Often creative thinking can resolve bullying scenarios, and implementing formal changes to the duties or working location of one or both of the employees may be desirable. This focus on managing relationships should be upheld, even where a complaint is not.
Keely Rushmore is a senior associate in the employment department at SA Law