Many workplaces have a “rotten apple”; that obnoxious individual who upsets their colleagues. Indeed, employees must accept that some colleagues may simply be unpleasant. But when that behaviour becomes more serious, and potentially amounts to bullying and harassment, what practical steps should employers take to minimise the risk of bullying and harassment within the workplace and to prevent a toxic workplace culture from developing?
Although there is no express statutory prohibition against bullying in the workplace, employers can still face legal liability if they do not address behaviour which might amount to bullying. However, distinguishing between conduct which is unattractive against conduct which is unacceptable and offensive can be very difficult.
ACAS’ guide “Harassment and Bullying in the Workplace” describes bullying as unwanted behaviour that is either “offensive, intimidating, malicious or insulting” (whether intended to have that affect or not) or “an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”. Bullying itself has no statutory definition, the closest statutory concept is “harassment” which is defined in the Equality Act 2010. But to be guilty of harassment, the treatment must be related to a protected characteristic (for example it must be related to race, sex, disability, age etc).
Bullying can often be perpetrated by those in senior roles and positions of power. However, it can also occur between peers or by more junior staff. Indeed, this type of behaviour can easily become prevalent if junior employees feel they must emulate senior figures’ behaviours to succeed.
An employer’s failure to act can be catastrophic for the employee subject to the harassment or bullying behaviour. So, employers should ensure it quickly identifies inappropriate behaviour and where it does, it should thoroughly investigate that behaviour and deal accordingly. Where an employer fails to act, they subject their staff to further injustice in failing to protect them and address what has happened.
Affected employees may be able to bring potential claims of harassment and discrimination (if bullying is related to a protected characteristic under the Equality Act 2010), a personal injury claim (if the employer has failed to provide a safe place of work) and/or an unfair constructive dismissal claim (if the employee feels they have no choice but to resign because of the bullying and the employers’ breach of the implied term of mutual trust and confidence).
In addition to adopting a zero-tolerance approach to harassment, discrimination and bullying in the workplace, and embedding a culture which encourages staff to speak up, employers should ensure they have an anti-harassment and bullying policy in their handbook and ensure that employees are properly trained on those policies and what constitutes acceptable behaviour in the workplace.
If you wish to discuss this further, or if you have any other employment law enquiries, please contact Rebecca Ellerbeck of Rowberrys on 01344 959166 or r.ellerbeck@rowberrys.co.uk.