Bullying and the law
Written by Ruth McGuire - 29th November 2021
Despite the devastating impact it can have on our lives at work, bullying is not actually against the law. This is the somewhat unpalatable truth. Because it is not legally defined as an ‘offence’, there is no universally recognised legal definition of bullying. However, it is generally accepted that bullying can involve name calling, unfair treatment, belittling, spreading of malicious rumours, undermining and any other anti-social behaviour that violates a person’s dignity and causes them to feel hurt or distressed. Bullying can be face-to-face but nowadays, can also be via email or social media i.e., cyberbullying.
In many cases, bullying is intentional and intended to hurt. In other cases, someone perceived to be bullying a colleague or someone they manage or supervise, might be over managing or exhibiting poor behaviour as a result of their own lack of management skills or general incompetence. Whichever is the case, the lack of a legal form of redress for bullying does not mean victims have to suffer in silence. Employers have a legal duty of care towards their employees and that includes ensuring employees can work in a safe environment that is free of bullying and harassment. In addition, depending on the nature of the bullying, employees may have special protection from the law.
The Equality Act
It might not seem obvious at first but bullying that an employee is experiencing at work may be legally defined as harassment. There is little difference between the two in terms of behaviours and impact, but the legal right to be protected from harassment at work is outlined in the Equality Act 2010. According to the Trade Unions Congress (TUC), harassment is ‘unwanted conduct that violates people’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.’
The three types of harassment which are unlawful under the Equality Act are as follows:
- Harassment related to a relevant protected characteristic.
- Sexual harassment
- Less favourable treatment of a student because they submit to or reject sexual harassment or harassment related to sex.
It is worth noting that the harassment identified under the Equality Act offers specific protection to students who may feel they have been victims of harassment.
The starting point for determining whether or not bullying behaviour is actually ‘harassment’, is with the protected characteristics. These are outlined by the Equality Act. If the unwanted behaviour is related to any of these characteristics, then the ‘bullying’ could actually be ‘harassment’ at work. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Employees who believe the unwanted, offensive, or hurtful behaviour they are experiencing is related to one or more of these characteristics, may have a legal claim against their employer. This is because ‘All employers have a duty of care to protect their workers and will be legally liable for harassment in the workplace if they have not taken reasonable steps to prevent it.’ Equality and Human Rights Commission (EHRC) 2020.
Case study examples from the EHRC website:
An ex-employee of Highways England was sexually harassed by her boss for months before leaving the organisation. An employment tribunal found in favour of the ex-employee and also ruled she had been constructively dismissed. The staff member was awarded £74,000 in compensation.
Following a tutorial, a tutor walks up to a female student who has stayed behind to speak to him, puts his hands on her waist and tells her she is ‘very attractive’. The student pushes the tutor away and tells him he is behaving in an inappropriate manner. As a result, the tutor subsequently marks down her exam paper. This is less favourable treatment of the pupil because she has rejected sexual harassment.
Collecting evidence
If an employee is going to seek protection under the Equality Act or under workplace policies, such as the anti-bullying/harassment policies or if they intend to make a legal claim for constructive dismissal, it is very important that they have evidence to support and substantiate the claim. The evidence should be a record of incidents and also a record of the impact of the unwanted behaviour. This includes what was said or done, by whom and what impact the behaviour had on the person who was the target of the bullying or harassment. Evidence could also include medical records, such as those from a GP or a hospital. Records such as emails or screenshots of posts on social media may also be relevant. It is also important to record details of any witnesses to incidents.
Next steps
Anyone who believes they are a victim of bullying/harassment at work should never suffer in silence. They should always seek help to deal with the behaviour that is causing distress and with the impact of that behaviour. This could mean talking to a GP, union representative, counsellor, or a trusted friend.
Whenever possible, the aim of any action in relation to harassment should always be to try and resolve issues informally. In some cases, good employers may not have been aware of a bullying/harassment problem and once it is brought to their attention, will take decisive action to protect their employees. If the informal approach fails to work, then employees should follow the formal procedures outlined in their workplace anti-bullying/harassment policy. Records of all steps taken and communications in relation to reporting a bullying/harassment complaint should be kept e.g., phone calls, meetings, emails and so on. Employees who are members of Trade Unions will be able to obtain help from a union representative to understand and secure their rights as employees. In addition, help is available from external organisations, such as ACAS and/or the EHRC. Legal action should always be a last resort if all other options have failed. This is because taking legal action will in most cases be a very stressful experience and can be emotionally draining.
Whatever option an employee decides to take to be safe from harassment at work, the key message is to never suffer in silence, always report concerns and take decisive action to stay safe.
Further help and advice:
www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/harassment
https://www.equalityhumanrights.com/en/advice-and-guidance
https://www.acas.org.uk/discrimination-bullying-and-harassment
Ruth McGuire is an Education Inspector with nearly 15 years of inspection experience. She has taught in both further and higher education. She is also a well-established education and training consultant, writer and freelance journalist. She is a Governor of an outstanding sixth form college and also holds board roles within the NHS.