Bullying and harassment at work can cause stress which in turn may lead to mental health conditions such as depression and anxiety. Poor mental health can affect productivity and related absence is estimated to cost to employers over £11 million per year.
What is harassment?
Harassment is unwanted or unwelcome behaviour that affects a person’s dignity. It covers unpleasant comments through to physical violence and can be persistent or a one-off incident. It is usually related to a personal characteristic such as age, gender, race, religion, sexual orientation or disability.
People have different tolerances, but a person who is being harassed will view the conduct of the harasser as unacceptable or demeaning. This may include unwelcome sexual advances, banter based on false racial stereotypes or making assumptions – for example about people with a disability that they don’t have a social life – and excluding them from events.
What is bullying?
At work, bullying is an abuse of power or position. It is a persistent, vindictive or humiliating attempt to undermine, criticise or humiliate an individual. For example, constantly criticising a competent employee, undermining their position, spreading malicious rumours, distorting or misrepresenting things that the employee has said, moving the goal posts so objectives can’t be achieved, denying promotion opportunities, making threats about job security and ultimately coercing the employee into leaving the job.
There is no law prohibiting bullying, but harassment is against the law if it is related to a protected characteristic, namely – age, disability, sex, sexual orientation, race, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership.
Equality Act – Liability for harassment by employees
Employers are responsible for preventing bullying and harassment and are vicariously liable for any harassment suffered by an employee during the course of employment. This means if an employee suffers harassment they can bring a claim under discrimination law against the employer as well as the employee who committed the act.
Some cases of mental illness will amount to a disability (one of the protected characteristics under the Equality Act). If an employee suffers harassment because of such an illness then they will be able to bring a discrimination claim against their employer. For more information on mental health as a disability see Freeths article “Mental Health at Work – Employer’s Obligations”.
An employer is liable for the actions of their employees subject to the defence of having “taken all reasonable steps to prevent the employee from doing the discriminatory act”.
Reasonable steps defence
In order to be able to show that you took all reasonable steps to prevent harassment in your workplace you should consider the following practical steps:
- ensure that you have a robust policy on harassment and bullying in the workplace;
- offer equality training to employees;
- ensure that the culture of your workplace promotes equality and diversity and that employees understand that jokes and banter can cause offence;
- investigate promptly and objectively if you receive a complaint of bullying or harassment whether raised informally or under your grievance procedure;
- make it clear to staff that complaints of bullying or harassment will be dealt with confidentially and sensitively;
- counselling and mediation are often useful tools in resolving a situation. In some cases bullying or harassment may involve management style or unintentional misunderstandings;
- in cases of deliberate or malicious acts, disciplining an employee in accordance with your disciplinary procedure may be the only alternative.
If an employer stands back and watches an employee suffering harassment or bullying this may amount to a breach of the duty of mutual trust and confidence which exists between employer and employee – enabling the employee to resign and claim constructive dismissal. If you have taken all reasonable steps to prevent harassment or bullying then this will form the basis of your defence to such a claim.
Duty to provide a safe system of work
All employers have a duty under the Health and Safety at Work Act to ensure so far as reasonably practicable the health, safety and welfare of their workers whilst at work. Employees can bring a claim for damages against an employer who fails in this duty. Again if you have taken all reasonable steps to prevent harassment or bullying then this will form the basis of your defence to such a claim.
In a case earlier this year a waitress employed on a zero hours contact was awarded £19,500 in damages for injury to feelings after being harassed at work by her line manager, Mr Nyokol. This case raises no new legal issues but serves as a timely reminder to employers of the ongoing obligation to monitor on harassment in the workplace.
The worker was employed as a waitress at a Britannia hotel. She was frequently asked questions by her manager about her sex life. There were also allegations of inappropriate touching and attempts to kiss her, conduct which went on for about 8 months. The worker did not initially make a complaint because she was worried that it would affect the number of shifts that she was offered.
Following a meeting with the hotel manager she was asked to lodge a formal complaint which she then did. The complaint was investigated but only in a cursory fashion. One witness came forward but was only interviewed for 10 minutes. As a result the hotel manager wrote to the worker concluding that certain “mannerisms and behaviours” towards her had been inappropriate. The manager was not disciplined but was asked to desist from such behaviour in the future.
The worker issued a complaint in the Employment Tribunal and following this the hotel carried out a second internal investigation. The manager continued to deny the allegations and the witness evaporated. The HR manager did not read the papers from the previous investigation and was not therefore aware of the inconsistency. She concluded that there was “no conclusive evidence” of harassment but required the line manager to attend a bullying and harassment course.
At the Employment Tribunal it was decided that Mr Nyokol had harassed the applicant and that Britannia Hotels were vicariously liable for this. In addition Britannia could not avail itself of the statutory defence.
Southern v Britannia Hotels Limited and another
Protection from harassment
The Equality Act 2010 applies to all workers, including those employed on zero hours contracts. Workers are protected from discrimination at work including harassment related to a protected characteristic which “has the effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment to an individual.”
An employer is vicariously liable for the acts of its employees unless the employer can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act. In this case the hotel was liable for the sexual harassment carried out by its manager. The court decided that the hotel and Mr Nyokol had joint and several liability for the award of £19,500 to Ms Southern.
Reasonable steps defence
The Equality Act gives an employer a defence to a claim of harassment by an employee if the employer can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act. It is important that these steps are taken before the discriminatory action takes place.
Top tips for employers
Employers need to ensure that they:
- have anti-discrimination policies in place
- the policies must be regularly reviewed and implemented if the defence is to be successful
- staff must be aware of company policies – don’t tuck them away in a drawer
- a training programme for staff should be put in place and be ongoing
- have a robust grievance procedure which is operated effectively.
In the Britannia case although there was an equality policy and a grievance procedure the investigation was described by the court as “wholly deficient” and Mr Nyokol was neither suspended during the investigation nor disciplined despite the findings.
NB – it is not a defence to have a policy if it is not properly followed.
This is the third in a series on mental health at work – see also:
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.