Bullying in the workplace

Part one: Businesses need to take a firm stand on bullying. Knowing it when they see it is the first step

Published:  19 October, 2017

Harassment and bullying remain significant workplace issues despite growing awareness. The Acas Workplace Trends 2016 report said anti-bullying policies had been widely adopted in Britain but were not adequately dealing with this behaviour: “last year over 20,000 calls were taken by the Acas helpline on bullying and harassment with some people reporting truly horrifying incidents including humiliation, ostracism, verbal and physical abuse.”

Typical behaviours
According to the Chartered Institute of Personnel and Development (CIPD), many typical harassment and bullying behaviours can manifest in the workplace, from unwanted remarks and physical contact to shouting and persistent unwarranted criticism.

Research shows employees affected are more likely to be depressed and anxious, less satisfied with their work, have a low opinion of their managers, and want to leave the organisation. The CIPD says “organisations should treat any form of harassment or bullying seriously not just because of the legal implications and because it can lead to under-performance, but also because people have the right to be treated with dignity and respect at work.”

An organisation’s public image can be badly damaged when incidents occur, particularly when they attract media attention. This was the situation that Audi Reading unfortunately found themselves in at the end of May 2017 as a coroner examined the suicide of an apprentice mechanic. While the behaviour of some of the staff was found to be unacceptable, the coroner held the dealership free of blame for the death as there were numerous other external influences that led to the suicide. But that finding didn’t stop a torrent of ill-informed abuse being directed at the dealership and staff.

The law
Bullying is not specifically defined in law but Acas gives a definition. It says that “bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.”

Acas goes on to note that bullying is subjective – one person may consider it firm management while another may feel that they’ve been bullied. The CIPD says that the legal position with respect to bullying is complex as “there is no separate piece of legislation which deals with workplace bullying in isolation.” It adds: “Bullying might be part of discriminatory behaviour, or related to a myriad of different legal principles and specific laws.” 

The CIPD points out that cyber bullying might catch out employers: “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.”

The Equality Act 2010 defines harassment as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual. Fundamentally,” says the CIPD, “the law protects individuals from harassment while applying for a job, in employment and in some circumstances after the working relationship has ended, for example, in connection with 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.”

Unacceptable behaviours
Acas suggests employers tell staff that the following, as an example, will not be tolerated:

  •  Spreading malicious rumours, or insulting someone verbally or physically ridiculing or demeaning someone, say by picking on them or setting them up to fail
  •  Exclusion or victimisation
  •  Unfair treatment
  •  Overbearing supervision or other misuse of power or position
  •  Unwelcome sexual advances
  •  Making threats or comments about job security without foundation
  •  Deliberately undermining a competent worker by overloading and constant criticism
  •  Preventing individuals progressing by intentionally blocking promotion or training opportunities

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  • Part ONE: Employers in the firing line  

    Before July 2013 individuals were free to bring Employment Tribunal claims. However, in July 2013 the government introduced Employment Tribunal fees for anyone wanting to make a claim or appeal a judgment.

    The fee to lodge a claim was £160 or £250 (dependent upon the nature of the claim) and the fee to pursue the matter to a final hearing was a further £230 or £950 (again dependent upon the nature of the claim). If employees won their claim, the tribunal judge could order the employer to pay any fees incurred.

    According to Chloe Themistocleous, an associate at Eversheds Sutherland (International) LLP, after the introduction of tribunal fees the number of claims being brought fell by 80%, but the ratio of claims being successful did not change and so the introduction of fees did little to deter spurious claims. “Clearly,” says Chloe, “some individuals were deterred from making claims due to the cost. Whilst a remission system was in place to help the poorest people, by reducing or waiving the fees, those who missed out on a remission had no choice but to pay the fees or not make a claim; many simply did not want to take the risk.”

    Supreme Court decision
    It appears that while claim numbers were dropping, unrest in trade unions was growing and so Unison decided to challenge the government’s implementation of the fee regime, claiming not only that it was unlawful but that it indirectly discriminated against women.

    Chloe says this was not by any means an easy task as both the High Court and Court of Appeal rejected the claim. “However, at the end of July 2017, the Supreme Court quashed the tribunal fee regime giving judgment that it was both unlawful and indirectly discriminatory.” Effectively the Supreme Court decided that the government acted outside its powers when it introduced fees at current levels, because the fees effectively prevent access to justice.

    What does this mean?
    The ruling means a number of things. Chloe explains: “As a result of the judgment no further fees can be charged by the Employment Tribunal until a replacement scheme is introduced.” This means new claims can now be brought for free again and no hearing fees will be charged claims already lodged.

    She adds that as for those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid.

    Of course, without the deterrent effect of fees, employers now face an increased risk of employment-related claims from current and former staff. Worryingly, Chloe says it is also possible that some individuals might now try to claim they should be permitted to bring out-of-time claims in respect of past alleged breaches of their rights, “arguing that the now found to be high and unlawful
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    When a replacement system will be debated and passed by parliament is unknown - it could be months or even longer. The Supreme Court ruling gives parliament a lot of ‘food for thought’, but so far, it is unclear
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    As Chloe sees it, while there is a window of opportunity to submit a claim without paying a fee, it is likely that employees will take it. “Claim numbers are expected to rise, but whether they will rise to the levels they were at prior to the introduction of tribunal fees is unknown. If they do, it is unlikely that the current tribunal system, with a reduced number of hearing centres, judges and clerks, could cope.”

    With time, if a new fees regime is introduced and once the media attention has died down, the number of claims will level, but, in the meantime, employers must watch and wait.


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