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Harassment is unlawful under the Equality Act if it is or relates to:
• Age or disability, such as making ageist comments, for example that older workers are incapable of learning new methods, making fun of a disabled worker because of his/her disability;
• Any conduct of a sexual nature. This includes unwanted touching, pinching, pushing, repeated unwanted invitations to meet outside work, inappropriate comments or questions;
• Race, colour, nationality, ethnic or national origins, religion such as derogatory remarks about race or religion, racist jokes, bullying a worker because of their race or religion,
• Sex, pregnancy, gender reassignment or sexual orientation, such as sexist or homophobic jokes or undermining of women, trans workers or gay workers, unwelcome sexual advances, sending pornographic images, text messages or video clips.
Workplace bullying and how to deal with it
A hostile work environment can be challenging at the best of times, but how do you tell if it's actually a case of bullying or harassment? And what do you do if it is? Camilla Palmer is CEO and Principal Solicitor for Your Employment Settlement Service, and successfully represented Countryfile presenter Miriam O'Reilly in her age and sex discrimination claim against the BBC. Camilla explains what constitutes bullying or harassment at work and gives her guide on how to deal with it effectively.
What constitutes bullying in the workplace?
There is no legal definition of bullying. ACAS (Advisory, Conciliation and Arbitration Service) describe it as 'offensive, intimidating, malicious or insultin
g behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient'.
They also suggest it includes:
• Spreading malicious rumours, or insulting someone by word or behaviour
• Copying memos that are critical about someone to others who do not need to know
• Ridiculing or demeaning someone – picking on them or setting them up to fail
• Exclusion or victimisation
• Unfair treatment
• Overbearing supervision or other misuse of power or position
• Making threats or comments about job security without foundation
• Deliberately undermining a competent worker by overloading and constant criticism
• Preventing individuals from progressing in the workplace by intentionally blocking promotion or training opportunities.
Bullying and harassment may occur face to face, through emails, phone or social media. It is worth noting that if any of this behaviour is carried out because of the employee's age, disability, gender, race, sexual orientation, it is deemed unlawful har
assment under the Equality Act.
Signs of bullying at work
It's not easy to distinguish bullying in the workplace from appropriate management. An employer can, and should, provide constructive criticism of an employee. If the employee's performance is poor, there is a high level of sickness absence or the employee's conduct is not good, the employer should discuss this with the employee to enable them to improve. Their performance, absence or conduct may then be appropriately monitored. If an employee has made a serious mistake and will not acknowledge it, the employer may have a 'frank' conversation and warn about the consequences of any repeat but the employer’s behaviour should not be intimidating, threatening or humiliating.
What is harassment under the Equality Act?
Harassment, under the Equality Act is unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person's dignity or creating
an intimidating, hostile, degrading, humiliating or offensive environment for them. It may consist of a single incident or a course of behaviour.
Harassment is unlawful under the Equality Act if it is or relates to:
• Age or disability, such as making ageist comments, for example that older workers are incapable of learning new methods, making fun of a disabled worker because of his/her disability;
• Any conduct of a sexual nature. This includes unwanted touching, pinching, pushing, repeated unwanted invitations to meet outside work, inappropriate comments or questions;
• Race, colour, nationality, ethnic or national origins, religion such as derogatory remarks about race or religion, racist jokes, bullying a worker because of their race or religion,
• Sex, pregnancy, gender reassignment or sexual orientation, such as sexist or homophobic jokes or undermining of women, trans workers or gay workers, unwelcome sexual advances, sending pornographic images, text messages or video clips.
What to do if you're being bullied at work
Put it in writing
You should raise your concerns about bullies at work with your manager or with Human Resources (if there is one). This can be done informally first, by having a discussion, but if that does not resolve matters you may want to put it in writing.
When doing this it is advisable to:
- Set out in a factual way why you think you have been treated badly and by whom.
- Avoid any temptation to over-state what has happened. If you do, your employer will be able to undermine you more easily by showing that part of what you say is wrong.
- Set out how the behaviour is upsetting you and making it difficult for you to do your work.
- Ask that the behaviour stop.
Also, it is not necessary to mention the words ‘bullying’ or ‘harassment’ particularly if your aim is to stop the behaviour and continue in your job. Allegations of bullying often make the working relationship more difficult as the employer will then want to defend themselves. Setting out the facts of what happened is usually enough.
If the harassment is because of age, sex, race, disability or sexual orientation, it is advisable to make that clear. However, a word of warning: making an allegation of discrimination or harassment (on a protected ground) is likely to make the employment relationship difficult.
What to do if the bullying continues
It depends what you want to achieve. If possible take advice about whether there has been behaviour which is unlawful discrimination or behaviour which is bad enough to enable you to resign because of it and claim constructive dismissal.
The options are:
1. Submitting a grievance setting out the behaviour in detail. Your employer should then investigate, hold a meeting with you, give you a decision about whether your grievance has been upheld or not and give you the opportunity to appeal. Before bringing a claim to the tribunal you should put in a grievance as failure to do so may lead to lower compensation.
2. Resigning, setting out in a letter why you are doing so. You can claim unlawful unfair constructive dismissal – if you have been employed for 2 years. You must show your employer behaved so badly that it broke all trust and confidence that you resigned for this reason and did not delay too long in resigning. However, you should only resign if you feel you cannot continue working for your employer, not because you think you may have a good claim for which you can be compensated. Bringing a claim is always uncertain, time consuming, stressful and expensive.
3. If the harassment is on a protected ground, such as age, then you can bring a claim while still employed. This will, however, be stressful as it is difficult to maintain a good working relationship when you are suing your employer.
4. To negotiate an exit package with your employer – while you are still employed, either yourself or with help from a lawyer or employment adviser.
Top tips
- Keep notes of each incident which you think is bullying. This should include what happened, when and the people involved.
- Look at how other employees are treated. If you are being treated differently, and worse, than employees who are younger, this would be unlawful under the Equality Act.
- If you can, speak to the person who is bullying you and ask them to stop.
- Never exaggerate what has happened, just stick to the facts.
- Talk to the union if you are a member.
- If you are thinking of bringing a claim in the tribunal, you should first put in a grievance.
Getting advice, time limits and tribunal claims
If you are a union member, take advice from the union. You can also get advice from ACAS, or a local Citizens Advice Bureau. Your Employment Settlement Service gives affordable advice about how to resolve disputes without litigating, e.g to get a settlement, but there is a fee.
The time limit for bringing a claim is 3 months less one day from the date of the bullying or harassment. There are some exceptions and if in doubt get advice. You must complete an ACAS Early Conciliation form within this time to give the employer a chance to contact your employer to see if a settlement can be agreed. There is a fee for lodging a claim with the tribunal. There is no fee for filing with ACAS.
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