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Creating safe working cultures: when bullying becomes a legal issue

Two months ago, ACEVO and the Centre For Mental Health released In Plain Sight, a report that reveals the emotional harm caused to people experiencing bullying in the charity workplace. Against this background, it’s important that employers understand what the law says and how to respond to unacceptable, abusive or bullying behaviour in the workplace. In this blog, ACEVO’s corporate partner Ellis Whittam provides information and advice.

Unlike harassment, the Equality Act doesn’t provide a legal definition of bullying. However, the Anti-Bullying Alliance say that bullying is “the repetitive, intentional hurting of one person or group by another person or group, where the relationship involves an imbalance of power.” It is generally accepted that it’s this imbalance, whether actual or perceived, that distinguishes bullying from conflict.

Legal ramifications

An employee cannot make a claim for bullying to an Employment Tribunal. However, they may be able to take legal action if the conduct falls under the scope of harassment.

The Equality Act 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 an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. There are 9 protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation) and it’s against the law to discriminate against someone on the basis of any of these characteristics.

Vicarious liability

It’s important to remember that anything that an employee does during the course of their employment may be deemed as having been also done by the employer, irrespective of whether the employer knew or approved the action or comment constituting harassment. In simple English, if one employee is found to have harassed another employee, you may be held responsible.

For example, you may face a claim for racial harassment if one of your managers is mimicking someone’s accent or calling them derogatory and racist names. Similarly, you may be held liable for sex-related harassment if one of your employees is making sexist jokes or remarks or making antagonistic comments towards a female employee who has to leave work early due to childcare arrangements.

Reaching a verdict

Employment Tribunals will look at a number of factors in determining whether an act is a form of harassment. Three factors a Tribunal will consider are:

  • The employee’s perception;
  • The circumstances of the case; and
  • Whether or not it’s reasonable for the actions to be deemed as harassment.

Recent case law has suggested that reasonableness has the most weight in reaching a decision.

Not harassment but not acceptable

While certain types of behaviour such as over-zealous management, poor treatment, pranks or horseplay may not always amount to harassment under the Equality Act, harassment claims shouldn’t be the only concern for employers. These behaviours may also lead to grievances, stress, absences, disengaged employees, resignations and constructive dismissal risks.

5 ways to create a safe working culture

In order to defend claims of harassment, you must be able to prove that you have taken all reasonable steps to prevent employees from committing harassment in your workplace. To do so, you should:

  • Make it clear to employees and volunteers that you will not tolerate bullying and harassment in your workplace, and that all allegations will be investigated and disciplinary action taken when required.
  • Remind employees and volunteers that it is their responsibility to ensure their behaviour does not cause offence, and to stop immediately if they are told their behaviour is unwanted or offensive.
  • Have robust policies and procedures in place detailing what is expected of anyone working or volunteering for your charity and outlining your approach to preventing bullying, intimidation and harassment.
  • Where possible, train managers and supervisors to identify concerns and ensure that their management style does not overstep the mark.
  • Ensure that anyone who works or volunteers for your charity has access to proper support and advice if they experience or witness unacceptable behaviour.

Speak to the professionals

When faced with bullying or harassment-related grievances, seek legal advice at the earliest opportunity. For expert guidance, call 0845 226 8393, ask for the Partnerships Legal Team and quote your ACEVO membership number.

Photo by Drew Beamer on Unsplash (grayscale photography of corporate meeting room)

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