Paul Ball: A guide to dealing with bullying and harassment in the workplace

Bullying and harassment of any description should not be tolerated in a workplace. This guide offers employers practical advice to help prevent workplace bullying and harassment, as well as how to deal with any such cases that may occur. 

What is bullying and harassment?

There are many examples and definitions of what may be considered bullying and harassment. The terms are used interchangeably and whilst bullying isn’t a standalone claim, bullying itself can be a form of harassment.

Usually a person making a complaint would define bullying and harassment as something that has happened to them which they feel is unwelcome or unwanted and that may have been offensive or intimidating. It can be persistent or an isolated incident. It can also have a huge impact on an individual’s health and wellbeing and can impact on their life outside of the workplace.

Harassment can relate to the protected characteristics of age; disability; gender reassignment; marriage and civil partnerships; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

The Equality Act 2010 defines harassment as:

“Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”

What constitutes ‘bullying’ is less clear, as there is currently no definition of the word in any employment legislation. There is, however, an implied duty of care for the employer to ensure its staff have a working environment that does not affect their health and safety, as well as an implied duty of mutual trust and confidence between the parties. If the individual feels that this has not been provided, or their complaints have not been addressed, they may resign and potentially bring claims for constructive dismissal, claiming that their employer has fundamentally breached their contract of employment by breaching the implied duty of trust and confidence.

Whilst it may be easy to identify extreme cases of bullying and/or harassment, there is sometimes a grey area in relation to what would be considered bullying. It is therefore good practice for employers to give examples of what is unacceptable behaviour in their organisation, making the point that it does not necessarily have to be face-to-face but can occur in written communications, visual images or over the phone.

Examples of bullying or harassment could include:

• making offensive or intimidating comments or jokes;
• unreasonable or impossible deadlines to work to;
• blocking opportunities or making threats about job security without foundation;
• spreading malicious rumours or insulting someone verbally or by behaviour;
• unfair treatment; or
• deliberately undermining a competent worker by overloading and constant criticism.

Examples of sexual harassment could include:

• making unwelcome sexual advances or touching in an intrusive way;
• making sexual comments, jokes or gestures;
• displaying pornographic photographs or sending such material.

It is important that employers take action against bullying and harassment as if it is not dealt with or is badly handled it can create serious problems for organisations, including:

• poor employee relations;
• poor performance;
• lost productivity;
• absence;
• resignations;
• damage to company reputation;
• Employment Tribunal claims.

What should organisations do?

Unfortunately, it is not always possible to prevent bullying from taking place, but there are steps that an organisation can take to promote a safe, healthy and fair environment for people to work in.

Policies

Whenever a case of bullying or harassment arises employers should take the opportunity to examine its policies, procedures and working methods to see if they can be improved.

New legislation has recently come into force requiring employers to take reasonable steps to prevent sexual harassment in their workplace. The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26 October 2024 and if it is found that an employer has breached the new duty by not taking reasonable steps to prevent sexual harassment in the workplace, employment tribunals have the power to increase compensation by up to 25%. The Equality and Human Rights Commission (EHRC) have issued technical guidance about the steps employers will need to take to comply with the new duty. The EHRC also has enforcement powers in relation to the new duty. Therefore, it is more important than ever for employers to have proper policies and procedures in place to prevent sexual harassment, as well as considering training for employees (explored in more detail below).

Regarding other types of bullying and harassment, if an organisation does not already have a workplace policy on bullying and harassment in place it is sensible to consider implementing one. This will help to ensure that all employees are aware of what will not be tolerated, what may constitute bullying and harassment and the fact that bullying and harassment may be treated as a disciplinary offence. It should be made clear to all staff that the policy applies to them whether they are on work premises or are working away from their base office. The policy should also set out treatment by staff, as well as by clients and customers that the organisation will not tolerate.

Given the new statutory duty, consideration should also be given to having a separate sexual harassment policy rather than this being a part of a more generic harassment and bullying policy.

In addition, all organisations large and small should have policies and procedures for dealing with grievances and disciplinary matters. In relation to a grievance issue, the policy should help ensure that individuals know who they can speak to if they have a work-related problem such as being subjected to bullying or harassment.

If an individual does raise allegations of bullying and harassment it would almost certainly be considered to be a grievance and should be dealt with in accordance with an employer’s own policies. Employees might not say that they are raising a grievance, and so it is important that management are trained to identify complaints in this manner.

Any complaint should be taken seriously and investigated promptly, sensitively and objectively. Managers should be trained in all aspects of the organisation’s policies about workplace conduct.

It should not be underestimated how much time and effort can be required to complete an investigation to an adequate degree. In cases of bullying, employers may find that there are a number of people they need to interview as part of an investigation, which is only the initial stage.  Taking senior managers away from their day job and the possibility of exposing the organisation to liability may not be a luxury that the organisation has. Therefore, seeking external legal support in managing an investigation can be worthwhile to undertake the investigative work with impartiality and independence, as well as expert support and experience.

Training

Training should be given to all staff on what is and is not acceptable behaviour. This should be regularly repeated and updated, with post-training assessment advisable to ensure the key messages have been properly taken on board. Records of who has attended (and passed) the training should be kept.

Training should include the fact that employees may be held personally liable for harassment and named as an individual party in discrimination proceedings in the Employment Tribunal.

Line managers should receive training on effective communication and managing performance/teams so that they are confident that they can communicate effectively with their team members and reduce the risk that constructive feedback is viewed to be bullying and/or harassment.

Those who are in line management roles should also be trained on all policies, not only those relating to disciplinary and grievances. Training for managers should include how to deal with a person who has made a complaint of harassment, as well as how to effectively liaise with the person accused, and importantly, should also cover how to spot harassment and bullying and knowing what to do if/when they see any behaviour that could amount to harassment or bullying regardless of whether a complaint has been made.

Show a clear commitment

Senior individuals within the organisation also need to be seen to set the right example and to adhere to the organisation’s policies. The message should be that the organisation has zero tolerance to any breaches of the policies around harassment and bullying.

All staff should feel confident that if they do raise a complaint, it will be investigated in a confidential and sensitive way and without fear of reprisal. Staff should know that there is a supportive culture and that they have someone to speak to if they feel there is an issue.

As such, an organisation should show its commitment to having a workplace culture of dignity and respect by having comprehensive policies in place and by acting upon complaints that are raised and taking appropriate action against those who don’t adhere to these where necessary.

Exit interviews

Employers should hold exit interviews with departing employees. This may be the only time that a person is prepared to discuss any concerning behaviours of colleagues. This would be particularly useful if your organisation has a high turnover of staff as that may indicate that there is an issue and perhaps that bullying and harassment has become a problem for the organisation.

It is important for employers to act upon any adverse feedback received.

Staff surveys

Staff surveys may assist an organisation, particularly larger organisations, in identifying if there are any issues within certain teams or departments that could be construed as being contrary to its values and/or policies.

Again, if there is any adverse feedback from a survey once it has been obtained it really should be acted upon. To obtain it and to then ignore it would send out the wrong message to staff, and even to clients and customers, if it became known that concerns had been shared and ignored. It could also impact the organisation’s ability to defend any employment claims that might arise which relate to harassment or bullying behaviour.

How do you deal with complaints?

Informal resolution

Organisations should set out in their grievance policy, and anti-harassment and bullying policy, the various different ways of raising a complaint, and this should include informal resolution. In some cases, it may be possible to deal with matters informally. Sometimes individuals are not aware that their behaviour is unwelcome and an informal discussion can sometimes correct that behaviour. It may be that the individual can do this directly or they may need support to raise it informally, e.g. from HR or a manager.

However, informal resolution will not always be possible, and complainants should not be discouraged from making a complaint formal if they wish to do so.

Mediation

It may be appropriate for the complainant to attend mediation with the individual they have complained about.

However, this should be a voluntary process. It will typically involve an independent third person or mediator meeting with both sides to attempt to find a solution to the issues that the parties have and to seek to agree a way forward. This may have the effect of repairing the working relationship. It may, however, not be possible to reach a resolution, in which case the complainant should be allowed the opportunity to have their complaint formally dealt with.

Formal process

It may be that the complainant does not wish for their complaint to be dealt with informally and/or to attend mediation. In those circumstances an employer should follow its own grievance procedure, deal with matters objectively and thoroughly investigate the complaint.

There may be some overlap with the disciplinary procedure here particularly if the outcome of the grievance may well be that some action needs to be taken against the individual who has been complained about.

Disciplinary procedure

Again, it is important to follow a fair procedure. This means in the case of a complaint of bullying and/or harassment that there must be fairness to both the complainant and the person complained about.

It would be sensible to include within the disciplinary process reference to bullying or harassment being an example of gross misconduct.

Before imposing a disciplinary sanction you must consider whether it is reasonable in light of all the facts to do so. It may be concluded that disciplinary sanctions are not appropriate and the individual who has been complained about may need to attend counselling or training as an alternative in order to ensure that they change their behaviour.

In any event, before imposing a disciplinary sanction you should ensure that the disciplinary policy and procedure has been followed in full.