Thackray Williams

It may be related to age, sex, race, disability, religion, nationality or any personal characteristics of the individual. It may be persistent or related to an isolated incident. The key factor is that the actions or comments are viewed as demeaning and unacceptable to the recipient.

What is bullying?

Bullying may be characterised as offensive, malicious or insulting behaviour, an abuse or misuse of power though means intended to undermine, humiliate, denigrate or injure the recipient.

What type of behaviour constitutes bullying/ harassment?

The following behaviour constitutes bullying/harassment:

• physical/verbal abuse;
• being humiliated in front of colleagues;
• exclusion or victimisation;
• spreading malicious rumours or insulting someone by word or behaviour;
• overbearing supervision or other misuse of power or position including; undermining an employee by constant criticism;
• unwelcome sexual advances which include touching, standing too close and suggestive comments; and
• preventing individuals progressing by intentionally blocking promotion or training opportunities.

Bullying and harassment need not be face-to-face and may also incur in written communications, email correspondence, phone conversations and supervision methods.

How do I know whether I am being bullied?

If you think you are being bullied, it is best to talk it over with someone, because what seems like bullying might not be. If you are unsure whether the way you are being treated is acceptable, there are a number of things you can consider, including:

• has there been a change of management or organisational style to which you just need time to adjust?
• perhaps you have a new manager or work requirements?
• is there an organisational statement of standards of behaviour that you can consult?
• can you talk over your worries with your personnel manager/line manager/supervisor/union representative or colleagues, who you may find share your concerns?
• can you agree changes to workload or ways of working that will make it easier for you to cope?

What should I do if I am being bullied/ harassed?

• Let your union or staff representative know of the problem, or seek advice elsewhere, perhaps from a Citizens Advice Bureau, an Acas enquiry point or one of the bullying help-lines that are now available by phone and on the Internet.
• Try to talk to colleagues to find out if anyone else is suffering, or if anyone has witnessed what has happened to you - avoid being alone with the bully.
• If you are reluctant to make a complaint, go to see someone with whom you feel comfortable to discuss the problem.
• Keep a diary of all incidents - records of dates, times, any witnesses, your feelings, etc. Keep copies of anything that is relevant, for instance annual reports, letters, memos, notes of any meetings that relate to your ability to do your job. Bullying and harassment often reveal themselves through patterns of behaviour and frequency of incidents. Keep records and inform your employer of any medical help you seek.
• Tell the person to stop whatever it is they are doing that is causing you distress, otherwise they may be unaware of the effect of their actions. If you find it difficult to tell the person yourself, you may wish to get someone else - a colleague, trade union official or confidential counsellor - to act on your behalf.
• If you cannot confront the bully, consider writing a memo to them to make it clear what it is you object to in their behaviour. Keep copies of this and any reply.
• Be firm, not aggressive. Be positive and calm. Stick to the facts. Describe what happened.
• If you do decide to make a formal complaint, follow your employer's procedures, which should give you information about whom to complain to and how your complaint will be dealt with.
• If you have access to a union representative or other adviser, ask them to help you state your grievance clearly, as this can help in its resolution and reduce the stress of the process.
• Be aware that disciplinary procedures may also be used for disciplinary action against someone who makes an unfounded allegation of bullying or harassment.

At what stage should I consider legal action?

If you have made efforts with your employer to resolve the bullying and or harassment and effective action is not taken you should take advice on your legal position.

If you leave and make a claim to an employment tribunal, the tribunal will expect you to have tried to resolve the problem with your employer, and any records you have will be considered when it hears your claim. This is also the case in relation to allegations of discrimination.

Resignation should be the last resort and employees should ensure that they are in a position to show that they have tried to resolve the situation.

Employees should remember that it is not possible to go to a tribunal directly over bullying, but complaints can be made under laws covering discrimination and harassment. If you have left your job because of bullying, you might be able to claim unfair ‘constructive’ dismissal (see below).

DISCRIMINATION AND HARASSMENT

It is not possible to make a direct complaint to an employment tribunal about bullying. Employees may however be able to bring a claim under discrimination and harassment laws.

In European Law, The Framework Directive for Equal Treatment in Employment (2000/78/EC) defines harassment (Art 2.3) as giving rise to the prohibitions against discrimination when: “unwanted conduct related to (religion, belief, disability, age or sexual orientation) takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.”

Employers should therefore be aware of the following complaints:

• sex: the Sex Discrimination Act gives protection against discrimination and victimisation on the grounds of sex, marriage or because someone intends to undergo, is undergoing or has undergone gender reassignment
• race: the Race Relations Act 1976 gives protection against discrimination and victimisation on the grounds of race, colour or nationality. The regulations that amended the Act (Race Regulations 2003) also give a stand alone right to protection from harassment on the grounds of race and ethnic or national origin
• disability: the Disability Discrimination Act 1995 gives protection against discrimination and victimization on the grounds of disability
• sexual orientation: the Employment Equality (Sexual Orientation) Regulations 2003 give protection against discrimination and harassment on the grounds of sexual orientation (orientation is defined as 'same sex' - lesbian/gay - 'opposite sex' - heterosexual - and 'both sexes' - bisexual)
• religion or belief: the Employment Equality (Religion or Belief) Regulations 2003 give protection against discrimination and harassment on the grounds of religion or belief;
• age: the Employment Equality (Age) Regulations 2006 give protection against discrimination and harassment on the grounds of age.

BULLYING, HARASSMENT AND CONSTRUCTIVE DISMISSAL

If an employee is forced to resign as a result of bullying or harassment they may be able to bring a claim for constructive dismissal.

What is Constructive Dismissal?

Constructive Dismissal occurs when an employee is forced to resign from their job because of their employer’s conduct. The employee’s reason for leaving their job must be serious – i.e. there must be a fundamental breach of the employment contract. Bullying, harassment or violence against an employee by a work colleague is a fundamental breach of contract and will in most circumstances entitle an employee to claim constructive dismissal. Employers should be aware that an employee may resign over one serious incident or the last in a series of less important incidents that are serious when taken together.

The law implies into every contract of employment certain terms that impose duties on employers. Three particularly relevant duties in relation to bullying and harassment are:

• the duty not to do anything likely to destroy or seriously damage the trust and confidence between an employer and employee;
• the duty to provide reasonable support to employees; and
• the duty to provide a safe work place (see below).

A breach of any of these duties may entitle an employee to resign and claim to have been unfairly constructively dismissed.

Employees should be aware that constructive dismissal can be difficult to prove, so it is important to seek legal advice on this issue prior to resignation.

BULLYING, HARASSMENT and HEALTH AND SAFETY AT WORK

Breach of contract may also include the failure to protect an employee's health and safety at work. Under the Health and Safety at Work Act 1974 employers are responsible for the health, safety and welfare at work of all employees. This broad definition extends to taking steps to prevent stress-related illnesses, which can be caused by bullying and harassment in the work place. Employers should be aware that failure to limit the risk and monitor a situation could result in a criminal offence.

For more information about this or any other employment related issue contact Victoria Wright at victoria.wright@thackraywilliams.com Telephone: 0208 290 0440