Bullying and Harassment at work - do you have zero tolerance?
Under the Health and Safety at Work Act 1974 we know that employers have a duty to provide their staff with a safe place and system of work. Employers should be aware that this includes a workplace free from harassment and bulling which may, in certain circumstances, also amount to unlawful discrimination. Employers are therefore responsible for ensuring that their staff are protected from unlawful harassment, bullying or discrimination in the course of their work on grounds of gender, sexual orientation, marital or civil partner status, gender reassignment, race, colour, nationality, ethnic or national origin, religion or belief, disability or age.
Did you also know that the Protection of Harassment Act 1997 (PHA) may also impose liability on an employer for a course of conduct amounting to harassment by an employee? Employees can bring claims for workplace harassment in appropriate circumstances under the PHA. But what we want to know is what kind of conduct constitutes harassment under the PHA? The Act prohibits individuals from pursuing a course against another that they know, or ought to know, amounts to harassment. The problem is that harassment is not specifically defined.
The recent Court of Appeal decision on Veakins v Keir Islington provides us with useful guidance on this and worth noting is that although the legislation covers workplace harassment, employee claims are relatively rare. This is mainly due to the protection against bullying that UK discrimination laws provide but also because of high threshold for establishing workplace conduct as harassment under the PHA. Such conduct needs to be oppressive and unacceptable, not just unattractive, unreasonable or regrettable.
Mrs Veakins claimed that following an initial dispute over wages, her supervisor began a campaign of bullying against her that included a “telling off” in front of her colleagues, raising issues around her time keeping and travel arrangements, swearing at her (although this was not unusual in this workplace) and ripping up a letter of complaint she had written. Mrs Veakins was signed off work with depression and subsequently resigned in July 2006. She brought a claim in the County Court for harassment under the PHA. The Court dismissed her claim on the grounds that the conduct while “extremely unacceptable”, did not reach the level of criminality required for a successful claim under the Act. This decision was overturned by the Court of Appeal who stated that for conduct to constitute harassment within the meaning of PHA, the primary focus should be in whether the conduct is oppressive and unacceptable, and it should be a secondary consideration that the conduct must be such that a criminal prosecution would have a reasonable prospect of success. The Court of Appeal decided that the campaign of victimisation had crossed the line and could have actually led to criminal prosecution.
This is an important decision which has a big impact. The position before this decision was that for a claim to be successful under PHA the conduct had to be fairly serious, even threats of violent behaviour were not sufficient. This latest decision by the Court of Appeal has implications for employers in that behaviour employers may have previously thought was not serious enough to constitute harassment under the PHA, such as a series of relatively minor incidents, could now amount to harassment for which employers could be liable.
This was the second major decision under the PHA last year, so it seems that employees are now bringing claims!
Although the law does not require employers to have a separate policy on bullying and harassment, to minimise exposure under the PHA, it is strongly recommended that such a policy is put into place. . The purpose of this policy is to ensure all staff are treated with dignity and respect, free from harassment or other forms of bullying at work. It should set out examples of the type of conduct that may constitute harassment or bullying and the employer’s commitment to eliminating such conduct. The policy should be clearly communicated to all staff and expressly state that harassment in the workplace:
- Will not be tolerated and will be treated as disciplinary offence;
- Should be reported of it should occur (and have a mechanism for this);
- Will be thoroughly investigated were it is alleged; and
- Will result in action by the employer to ensure it does not happen again.
By setting down rules for conduct and dealing with complaints through a proper procedure, case law suggests that this may establish a “reasonable steps” defence.
If you do not have an anti-harassment or bulling policy in place and would like one following your reading of this article, please do not hesitate to contact any of the Employment Team.
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