Bullying and Harassment in the workplace is a sensitive issue and one that can cause huge problems for employers, if mishandled. With an ACAS study revealing that bullying and harassment complaints have been steadily increasing throughout the UK since 1998, it is clear that employers need to adopt clear policies and procedures to ensure they successfully combat the issue.

Research for the Department for Business, Enterprise and Regulatory Reform estimates the cost of bullying related absences, staff turnover and productivity to be close to £18 billion. This highlights the importance of both promoting more positive and inclusive work environments and offering a clear procedure to follow in order to deal with complaints.

Employers need to adopt policies to ensure their employees are treated with respect and dignity. This can be done through highlighting the type of behaviour that is deemed unacceptable and ensuring that no employees feel intimidated or threatened under any circumstances.

This article will give guidance to employers as to what procedures can be adopted to deal effectively and efficiently with those complaints that do arise. For full and detailed guidance employers are directed to Harassment and Bullying in the Workplace, a joint guide by the Labour Relations Agency and Equality Commission for NI.

What is harassment?

Harrassment is unlawful both in NI and the rest of the UK. Harassment is defined by the Labour Relations Agency as;

In the UK except NI, Harrassment in all forms is covered under the Equality Act. In NI, separate pieces of legislation define unlawful harassment. This relates to a number of protected characteristics;

• Age
• Disability
• Marital or civil partnership status
• Sex
• Sexual orientation
• Race
• Religious belief
• Political opinion

This behaviour can take place through a variety of verbal, non-verbal and physical means.

What is bullying?

Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority, but can include both personal strength and the power to coerce through fear or intimidation.

How to deal with a complaint

When a complaint of bullying or harassment is made the employer must choose whether the allegation should be investigated as a grievance or disciplinary matter. In general, an employer will investigate the complaint as a grievance initially and if it is upheld the information gathered will be used to take disciplinary action.

In dealing with a complaint inquiries should first be made as to whether the alleged victim wants to take formal or informal action. If the victim doesn’t want to make a complaint but unacceptable behaviour has been noticed it should still be considered whether an investigation is appropriate.

Informal Action

This is often the easiest and fastest way with which a complaint can be resolved. This type of action will usually be suitable in instances where the behaviour has not been repeated or isn’t serious in nature.

Informal measures may include:

• The victim approaching the alleged bully/harasser and asking them to stop the behaviour.
• Approaching the alleged bully/harasser with the support of a colleague, trade union rep or manager.
• Asking a manager to approach on their behalf.

The employee should be notified that under informal proceedings the managers role is solely one of support and assistance and that disciplinary action can only take place if there is a formal investigation. Written records should be kept of the complaint and any action taken in order to assist in any future proceedings that may arise if the behaviour doesn’t stop.

Tips to facilitate effective informal proceedings.

Manager Training

It is important that managers are equipped with the necessary skills in order to deal with bullying and harassment complaints successfully. Not all managers will have this skill set and so conflict resolution training should be delivered in order to increase the chance of the complaint being dealt with at an early stage before intensifying.

Advisory Services

 If practicable, it will be beneficial to set up an advisory service to assist in resolving issues at an early stage and without formal proceedings. These advisors can offer expert advice on the different options available to the victim and help decide what their next steps should be. This should help to negate the need for entering into formal proceedings in a greater number of instances. It should be noted that these advisors should be kept completely separate from formal investigation or disciplinary measures.

Formal Action

Dealing with the complaint

Formal action is to be taken if the behaviour in question is so serious in nature that informal proceedings are insufficient. If the allegation amounts to gross misconduct the alleged harasser may be suspended as a precautionary measure while the investigation is carried out.

Once the complaint has been received by the manager he/she should arrange a meeting with the alleged victim and let them know they have the right to be accompanied to this meeting. This meeting will be used to gather more information on the complaint.

The manager should also meet with the alleged harasser to outline the nature of the complaint made against them and give them a chance to respond to this allegation. They should be advised that they may face disciplinary action, which they have the right to be accompanied to, and that they should avoid contact with the alleged victim until the matter is resolved.

Investigating the complaint

The investigating manager should try and gather as much information as possible in order to establish the facts of the allegation. Any meetings with witnesses should be private and confidential and detailed records should be kept. Once information is gathered the manager may wish to meet with the alleged victim again in order to clarify information.

Communicating the decision

Having obtained all the information possible, the investigating manager should consider whether the facts support the complainant’s case and, if so, what disciplinary action needs to be contemplated, based on the company’s disciplinary policy, or whether other action is warranted. A written report of the investigation and its findings must be prepared.

Both parties should be informed of the decision in writing and it should be considered: what disciplinary action should be taken (if any), whether a transfer is appropriate and whether any counselling is required. In order to comply with the Employment (Northern Ireland) Order 2003 Dispute Resolution Regulations 2004, the complainant and alleged harasser must be offered the right of appeal.

Tips to facilitate effective formal proceedings

Gathering information

In many cases the case may hinge on one person’s word against another’s and so it can be difficult to make a final decision. In these cases any other relevant information could be vitally important in deciding whether, on the balance of probabilities, it is more likely that the alleged behaviour happened than did not happen. Extra information that could be useful is previous knowledge of the alleged perpetrator’s behaviour, any previous incidents involving either or both parties, or the behaviour or demeanour of the complainant or the alleged harasser/bully before, during or after the incident is deemed to have taken place.

Training

Bullying and harassment complaints need to be handled sensitively and so it is important that those involved in carrying out the formal procedures have been given adequate training. All managers should have a comprehensive understanding of the legislation surrounding bullying and harassment as well as the policies and procedures in place in their own organisation. In order to handle the situation with care, it should be ensured that those involved in the investigation process have been trained in interview skills.

Disciplinary Action

If the investigation finds that an offence has been committed, it must be decided what the appropriate course of disciplinary action is to be. In deciding this action it should be considered, among other things, the context in which the conduct occurred, whether the perpetrator had a history of previous misconduct and the level of harm caused. If the perpetrator is disciplined but not dismissed, measures should be taken to both protect the victim in future and ensure there is no repeated misconduct. Detailed guidance on disciplinary procedures can be found in the Labour Relations Agency’s Code of Practice on Discipline and Grievance.

Case law of note

Rhys Harper v Relaxion Group Plc

In this case, it was stated by the House of Lords that an employer can be vicariously liable for an employee’s actions. They may be liable if there is a substantive connection between the discriminatory conduct and the employment relationship at the time of the discriminatory act.

Tower Boot Co Ltd v Jones

In this case the Court of Appeal held that a wide reading should be given to the term ‘course of employment’ so as to ‘deter racial and sexual harassment in the workplace through a widening of the net of responsibility beyond the guilty employees themselves, by making all employers additionally liable for such harassment.’ This judgement was complemented in the Northern Ireland Industrial Tribunal’s decision in

O’Neill v Herbel Restaurants and Others.

These cases highlight that employers may be liable for acts of harassments committed by their employees whilst in the course of their employment. This should serve as further reinforcement as to the importance of adopting full, adequate and proper policies and procedures to deal with bullying and harassment in the workplace.