There is a lot of overlap between employment legislation relating to harassment and bullying. Employers and employees need to be more aware.
With high profile harassment cases in the papers and news drawing attention to attempts to talk out legislation on sexual harassment at work, experts say employers and employees need to be more aware of their rights and responsibilities around employment law, including about the difference between harassment and bullying.
A recent free webinar by law firm Bishop & Sewell LLP, which offers employers training in this and other areas, highlighted the significant overlap between harassment and bullying. Harassment involves unwanted conduct in connection with a protected characteristic under the Equality Act, such as sex or race, or unwanted conduct that is of a sexual nature, where the conduct has the purpose or effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive. Unwanted conduct can be interpreted broadly, the webinar heard, to encompass banter, social media posts and mimicry.
Speakers on the webinar put up some examples and asked attendees to select whether they represented bullying or harassment. Many mistook harassment for bullying. The webinar illustrated the importance of employers being proactive when it comes to addressing both harassment and bullying through having policies on both, with clear steps outlined about actions that should be taken in order to minimise the risk of legal action being taken against them.
Marianne Johnson from Bishop & Sewell says employers sometimes think they don’t need to act because a bullying claim on its own will not make it to an employment tribunal. “They have a false sense of security. They think that there will be no claim simply for bullying,” she said. “What a lot of them don’t know is that bullying can count as harassment in certain circumstances.”
She advises employers to take every allegation of harassment or bullying seriously unless it is completely ridiculous. Employers have a duty of care and should investigate any allegation as a first step to see if there is a risk of a harassment case, she says, and they need to act promptly. She adds that HR managers need to be trained about the risk from harassment cases.
“There are claims about harassment in the news all the time,” she says, citing a case where a female banker was called hormonal at work and her employer was found guilty of harassment at tribunal and fined £32K.
Despite this and despite the media spotlight often being on the more borderline cases, Johnson says many employees don’t take action when they face daily bullying or harassment and microaggressions until it is too late, for instance, when their health has been affected.
She says it is often better to get out of a toxic workplace environment before you reach the stage of a potential claim due to the knock-on impact on your confidence. “The sooner you can get out the more you can minimise the impact,” says Johnson.
On the potential new legislation on sexual harassment, she adds that, regardless of whether it gets passed or not, employers “are woefully unaware of their responsibilities and how to minimise their risk.”