If you manage people, these are words you probably dread. You're not alone; most managers feel the same.
This blog post is the first of a series I'm going to produce on this subject. Here, I'll cover what the law says about harassment and bullying and who is responsible for incidents that happen in your workplace.
The Law – Definitions of harassment and bullying
You've probably noticed that both terms are used interchangeably in the workplace, but there is a legal difference between them.
Harassment is a form of discrimination and defined as
‘Unwanted conduct that has the purpose or effect of either violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person' (Equality Act 2010).
If your employee complains they're being harassed, it must be because of their ‘protected characteristic' to be unlawful. That means because of their age, disability, gender reassignment, race, religion and belief, sex, or sexual orientation.
There are no laws explicitly prohibiting bullying in the UK. Instead, you're expected to implement the guidance provided by ACAS, which defines bullying as:
‘Offensive, intimidating, malicious or insulting behaviour which intentionally or unintentionally undermines, humiliates, denigrates or injures the recipient'.
For behaviour to be bullying rather than harassment, it would not be connected to your employee's protected characteristic.
Under health and safety legislation, you must provide a safe and healthy working environment. This requires you to assess, minimise and control the workplace risks to your employees' mental health. Bullying and harassment are viewed as risks to mental health.
When you're trying to manage incidents, the way the law approaches these situations can be confusing. Why?
Firstly, harassment doesn't need to be deliberate to be unlawful or illegal.
Your employee may not have intended to harass their colleague. But it is the impact on the recipient that is considered significant.
Secondly, the terms unwanted and unwelcome appear in the harassment definitions of the UK (and several other countries).
You probably think this means the recipient would have to tell the perpetrator or you, their manager, that they objected to the behaviour. Otherwise, how would you know?
Legally, your employee doesn't have to say they object to the behaviour for it to be considered unwanted. Conduct can be unwelcome, even if your employee submits to it, or puts up with it.
It is recognised that your employee may fail to speak up for reasons such as:
- not knowing how to complain;
- fear of being seen as a trouble-maker or
- thinking they'll lose their job if they complain about someone senior to them.
Saying that you didn't know or were not told the behaviour was unwanted or unwelcome by the complainant is not a defence. To find out how to address this, download my course on ‘Harassment and Bullying at Work.‘
Who is Liable – Employee or Employer?
As the employer, you're generally held responsible for acts of harassment or bullying that occur in your workplace. Legally this is called vicarious liability.
Where and when are you liable?
You can also be held liable for harassment or bullying that occurs ‘in connection with a person's employment'. Which means you're responsible for incidents that take place between employees at training courses, conferences, workplace parties, business or field trips
Your liability also extends to staff using workplace computers, phones or tablets to harass another employee.
By now, you're probably thinking how unfair this is to you! You may have a ‘rogue employee', who's harassing a colleague without your knowledge. Yet your company ends up being taken to court and held responsible.
You'll be relieved to know that individuals who harass or bully others in the workplace are, of course, directly liable for their actions.
What can you do about it?
The good news is that you can minimise your liability as an employer by taking two specific actions, which are:
- demonstrating that you've taken all reasonable steps to prevent harassment from occurring in your workplace, and
- showing that you've responded appropriately to resolve incidents of harassment when they have occurred
Where you can show clear evidence of this, the perpetrator alone would be held liable for their behaviour. To show you've taken all reasonable steps, download my course on ‘Harassment and Bullying at Work.‘