Dealing with complaints of Bullying and Harassment Darren Newman

Three separate concepts Harassment – based on protected characteristic. Actionable under the Equality Act Harassment – not based on discriminatory grounds. Actionable under the Protection from Harassment Act 1997 Bullying – not a legal term. May involve behaviours leading to personal injury, or contract based claims

Protection from Harassment Act 1997 Designed as a stalking bill – nothing to do with discrimination Offence to pursue a course of conduct which ‘amounts to harassment of another’ – S.1(1) Harassing someone includes ‘alarming the person or causing the person distress’ – S.7 Course of conduct means at least two occasions – S.7 Gives a civil as well as criminal duty

Bullying persistent unwelcome behaviour unwarranted or invalid criticism being singled out mobbing nit-picking fault-finding Bullying isolation exclusion distorted or fabricated allegations of underperformance being shouted at treated differently excessive monitoring

Bullying or management? Loss of temper Inappropriate language Personal abuse rather than professional criticism Humiliation in front of others Inconsistent treatment Disproportionate responses

Discrimination and harassment Freestanding claim under discrimination legislation Must be based on one of the discrimination strands Compensation for loss and injury to feelings Also be aware of right not to be victimised – applies where employee has raised or been involved in any discrimination complaint

What is Harassment? – S.26 Equality Act Unwanted conduct Related to a protected characteristic Which has the purpose or effect of: Violating a person’s dignity or Creating an intimidating, hostile, degrading, humiliating or offensive environment

Sexual Harassment Harassment is also Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment Any less favourable treatment arising from employee’s rejection of or submission to the conduct

What conduct is unwanted? Often entirely clear Unwanted means unwelcome or uninvited – Reed & anor v Stedman [1999] IRLR 299 Sometimes the victim will need to make it clear that the conduct is unwanted Tribunals will be sympathetic to the position of subordinates who feel they can’t complain Managers need to set example of appropriate behaviour

A reasonableness threshold What conduct is sufficiently serious to amount to a violation of dignity / offensive environment? Can ‘banter’ ever be an acceptable defence? The test is not entirely subjective – there is a threshold of reasonableness Tribunal must have regard to the perception of the victim the other circumstances of the case and ‘whether it is reasonable for the conduct to have that effect’

Liability for Harassment Employers are vicariously liable for acts of employees where acts are done ‘in the course of employment’ Defence to show that employer did everything reasonable to prevent the harassment in question Just having a policy will not do!

Handling complaints In dealing with complaints you have to consider the rights of the accused as well as the accuser Suspension should not be a knee-jerk reaction – possible breach of contract If complaint is made in good faith – hard to prove otherwise – very important not to victimise complainant

Martin v Devonshires Solicitors EAT December 2010 Employee makes false allegations of discrimination as result of paranoid delusions Dismissed because employer fears further allegations and disruption Accepted that allegations made in good faith Even false allegations are protected - but EAT holds no victimisation – features to the complaint that were properly separable from the complaint itself

Westwood v West North West Homes Leeds Ltd (EAT, 5/6/13) Employee believes he is the victim of race discrimination Brings 10 separate ET claims and grievances Grievances all rejected Employer dismisses citing employees loss of trust and confidence Held: unlawful victimisation – allegations were made in good faith even if without foundation

Mediation Can be useful for interpersonal disputes Not suitable when allegation is clear gross misconduct Has to be a voluntary process Legal status of what happens during mediation session yet to be tested

‘Without prejudice’ discussions Not a magic phrase Means that negotiations aimed at resolving a dispute will not be admissible in evidence “pre-termination discussions” also excluded from evidence in unfair dismissal cases – does not apply in discrimination cases

Grievance and disciplinary proceedings Employer’s often deal with harassment and bullying though grievance procedures But what do you do if the grievance is upheld? How can you carry out an open minded disciplinary process, if grievance process has already decided an employee is guilty?

Anonymous and informal allegations What do you do if an employee tells you something ‘off the record’? You can’t unknow a fact – may have to investigate anyway However, what the victim wants to happen can be a valid thing to take into account – make a careful record Make sure employee is told that they will be supported and protected if they make a formal complaint Key consideration – risk to other employees

Key areas for review Is there a mechanism allowing complaints to be raised at an early stage? Is there a common understanding of what constitutes appropriate behaviour? Do disciplinary and grievance procedures operate effectively?