As part of Anti-Bullying Week 2023 the Anti-Bullying Alliance is encouraging the public to ‘help make a noise to stop bullying.’ While the charity’s focus is on bullying in schools, bullying is not limited to the playground. Workplace bullying has been hitting the headlines more frequently in recent months.
This article looks at the key elements of good practice for preventing and responding to allegations to workplace bullying.
The impact of workplace bullying
Bullying at work can be costly in terms of productivity, morale and retention, but also can result in costly Employment Tribunal and Court claims.
Bullying often affects an employee’s work performance and can damage their confidence, mental health and general wellbeing. While there is no law specifically against bullying, it can lead to claims for:
- personal injury, generally where the stress causes a psychiatric injury;
- constructive unfair dismissal; and
- potentially harassment, if on grounds of a protected characteristic, which is a form of discrimination under the Equality Act 2010, or under the Protection from Harassment Act 1997.
Employers can be liable for an employee’s discriminatory bullying of a colleague. Furthermore, employers can also be vicariously liable for damages from their employee’s harassment of another employee under the Protection from Harassment Act 1997.
Banter or bullying – what is the difference?
Banter is the playful and friendly exchange of teasing remarks. Bullying goes beyond this.
There is no legal definition of bullying, but Acas defines it as: “unwanted behaviour from a person or group that is either:
- offensive, intimidating, malicious or insulting; or
- an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.”
The charity, Family Lives, provides some useful examples of workplace bullying:
- Shouting, aggressive behaviour or threats;
- Being persistently picked on in front of others or in private;
- Being constantly criticised, ignored, victimised and excluded regularly;
- Spreading malicious rumours about members of staff;
- Misuse of power or position to make someone feel uncomfortable or victimised;
- Making threats about job security without any basis or substance; and
- Marginalising or blocking promotion or progress within the workplace.
Prevention of bullying in the workplace
Fostering a workplace culture in which it is clear to all staff that bullying and harassment will not be tolerated, and that complaints about bullying will be taken seriously, really is key.
A good starting point, is to ensure that policies on bullying and harassment are fit for purpose and up to date. These policies should clearly set out what is expected in terms of behaviour, clear sanctions for flouting those expectations and a robust and efficient process to resolve any issues which may occur.
For a policy to be effective, it is important that all employees are aware of the policies and that they are actively promoted and embodied by all levels of employees and management. Additional training is often required so that employees and management can more easily understand their rights, obligations and the distinction between cheerful banter and bullying/harassment.
These steps can also help establish the statutory defence of having taken reasonable steps to prevent the harassment, so it is helpful to keep clear records of the steps taken.
Supporting employees who allege that they have been bullied is crucial. Employees should be treated sensitively and should be reassured that their complaint is being taken seriously, and that the allegations will be treated as confidential. Depending on the nature of the allegation, the employee may prefer to speak to a HR manager or colleague of the same gender.
Check your policies to ensure the appropriate steps are followed within the time frame specified. Where an investigation is going to be carried out, the employee should be made aware of the steps and the likely time scale. Any delays should be communicated to the employee.
An employee making a complaint of discrimination will usually be protected from victimisation. Even if there is no potentially discriminatory element to the allegations, employers should encourage a culture in which employees feel supported and that there will be no repercussions from making allegations in good faith.
Offering support via an employee assistance programme or counselling may be helpful. This applies to both the employee alleging bullying and the employee who is the subject of the allegations.
Should we separate the employees?
If the allegations are serious and the employees work in the same area or team, the employer should consider if they should be separated or whether work responsibilities or reporting lines can be changed. This is to minimise contact between the alleged perpetrator and the individual alleging bullying while an investigation is carried out.
As far as possible, care should be taken not to penalise either individual. If there is no obvious solution, please speak to us.
Should we suspend?
Suspending the alleged perpetrator should only be done as a last resort, and suspension should not be an automatic response. Any suspension should be for as short a time as possible because an unnecessarily long period could be a breach of trust and confidence. This risks an unfair dismissal claim, as well as potentially affecting the wellbeing of the suspended employee.
We recommend keeping a record of the decision-making process.
Investigating allegations of bullying
Employers should consider if the issues can be resolved informally, as required by the Acas code of practice on disciplinary and grievance procedures. The options can be discussed with the employee making the allegations. Often, allegations of bullying will require investigating.
Employers should investigate promptly but also need to ensure that the investigation is reasonably thorough. The investigator can be an HR professional or a senior manager. In some cases, it may be necessary to appoint an external investigator if there are no suitable individuals available, for instance because an otherwise suitable manager is good friends with the alleged perpetrator.
Very often there will be different perspectives and the investigator should go into the investigation with an open mind and look for evidence that can help them reach reasoned findings. Both parties should be asked if there is anyone who they believe could be a potential witness and what evidence they could provide. Along with speaking to witnesses, depending on the allegations, the investigator may need to review emails, online chat in virtual meetings, social media, and CCTV footage.
Again, the process must be kept confidential and this must be explained to any witnesses who are interviewed. Both the alleged victim and perpetrator must be kept informed if there are any significant delays.
Action following investigation
Depending on your policy, another manager may need to be brought in to meet with the employee making the complaint and to review all the evidence before reaching a decision on the complaint. The employee should be offered a right of appeal if their allegations are rejected.
Where the findings are that bullying did occur, the next step may be to deal with the subject of the complaint under your disciplinary policy. This could result in a warning or dismissal.
How we can help
We can ensure that you have appropriate policies in place and guide you through the process when allegations of bullying are made.
We offer workplace training and an Annual Fixed Fee service called Employment Gold. For further information, please contact Eleanor Rogers in the employment team on 01227 763939.
Please note: This article is for general information only and does not constitute legal or professional advice.