How to deal with bullying and harassment in the workplace - with HR Solutions

Creating and managing a positive culture amongst your workforce is a key contributor in helping to retain valuable trained staff and can significantly contribute to managing risk.

Providing legal defence at an employment tribunal can be a significant strain on an operator’s time and attention, as well as putting pressure on a claims experience for those with Legal Expenses insurance.  However the effects of a negative culture spread much more widely. A high staff turnover affects the depth of knowledge and experience across your workforce and employee dissatisfaction lays operators open to communication issues with staff.  This can create an inability to address incidents and potential issues effectively and in turn can lead to an escalation in allegations and disputes from both a liability and legal expenses perspective.

In this piece we talk with our Care Partners HR Solutions about bullying and harassment between employees in the workplace, how this can negatively impact an operator and how you can effectively manage it.

Bullying and harassment continues to be a topic which employers can always learn from as part of a continuous aim to protect employees from harm and to promote dignity at work.  In a care setting when you are surrounded by some of society’s most vulnerable, allegations of bullying and harassment are serious and must always be addressed fully and promptly.

We will look at how employers can deal with complaints of this nature in a sensitive and safe way.

Definition

Bullying and harassment can be defined in the following ways.

Bullying

Bullying can be defined as persistent behaviour against an individual that is intimidating, degrading, offensive or malicious and undermines the confidence and self-esteem of the recipient.

It can include unwanted physical contact or assault, but also verbal bullying such as insulting or threatening comments, or indeed any comments or actions intended to undermine, belittle, embarrass or humiliate. There is also virtual bullying, which includes distribution of unwanted emails, texts or images published on social media or abusing technology to contact colleagues in an intimidating or malicious manner.

Harassment

Harassment is a form of discrimination under the Equality Act 2010. It has a legal definition in equality law of, “unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating…dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment…". In addition to this type of harassment, the Equality Act also prohibits sexual harassment which is conduct of a sexual nature which has the same purpose or effect as above. Lastly, it also prohibits less favourable treatment because somebody submitted themselves to or rejected, harassment related to sex or gender reassignment. 

• Harassment can be ongoing or can be a one-off act. It can take many forms, from a joke or ‘banter’ to actual physical violence.
• It may be persistent, or an isolated incident and can take many forms, from relatively mild ‘banter’ to actual physical violence.
• It may be intentional, obvious, or violent, but it can also be unintentional or subtle and insidious.
• It may take the form of nicknames, gossip, intrusive or inappropriate questions and comments. It can include unwanted physical and verbal conduct, coercion such as threats of dismissal or loss of promotion or even isolation through deliberate exclusion from communications, groups, or social groups.
• It does not matter whether the alleged harasser possesses the same protected characteristic for which the alleged victim feels harassed.
• The perception of the individual who was allegedly harassed is usually more important than the intention of the alleged harasser.

In some cases, employees may also not realise that their behaviour constitutes bullying or harassment and so it is important for everyone to realise that behaviour which may be acceptable to one person may not be acceptable to another. The fact that bullying or harassment may not have been intended, does not mean that it cannot have occurred. 

However, harassment (and bullying) will not have taken place if the effect of the conduct on the alleged victim is wholly unreasonable, particularly in the circumstances of the case.  Each situation will have its own set of circumstances, and so what is ‘unreasonable’ is difficult to define, it will be for an employment tribunal to weigh up the facts of the case in determining whether the effect on the victim was reasonable in the given situation.

Somebody who complains of bullying or harassment need not necessarily be the person towards which the behaviour is directed.  An employee may overhear for example comments made to a colleague for which they are offended by.  They are entitled to raise a complaint about it.

Furthermore, in addition to the victim, someone who witnesses harassment toward another person is also entitled to bring a legal claim in tribunal, if it had a negative impact on their dignity at work - even if they do not share the characteristic for which their colleague (the victim) was harassed. 

Liability for bullying and harassment

Employers are responsible for any acts of bullying or harassment committed within their workforce.  Employees may also be personally held accountable.

Poorly handled allegations of bullying and harassment can risk several claims depending on the nature of the matter, including health and safety and discrimination claims. If either the alleged victim or the accused believes the poor handling of such allegations has led to a breakdown of trust in their employment relationship with the company that individual may feel forced to resign and this can lead to a constructive dismissal claim.

In the Equality Act 2010, harassment occurs in relation to relevant protected characteristics. An employee can therefore raise claims of harassment at tribunal, if they believe it is connected to:

• Age
• Disability
• Gender reassignment
• Race
• Religion or belief
• Sex
• Sexual Orientation 

Not all forms of protected characteristics are explicitly protected from harassment. For instance, marriage and civil partnership, and pregnancy and maternity are not. This does not mean these groups of employees cannot raise a tribunal claim, because they may have redress under other forms of discrimination, related characteristics (e.g. sex) or other employment related claims.

For claims relating to conduct of a sexual nature, the employee does not need to show a connection or relationship to a protected characteristic.

At an employment tribunal, the judge will be concerned with three things when deciding if harassment has occurred. The effect on the employee by considering the victims perception, the other circumstances of the case and lastly whether it is reasonable for the conduct to have had that effect.

Tribunals can take a dim view where a company has failed to follow its own policy, and where the ACAS Code of Practice on Disciplinary and Grievance has not been followed it may make an adjustment to the award by up to 25%.

It is worthwhile to remember that harassment has another definition under criminal law, and so in some cases it is possible criminal offences and charges to be made under the Protection from Harassment Act 1997.

Enforcement by the CQC

The CQC can also hold registered care providers and their directors to account for failures in how the service is provided – which includes the bullying and harassment of staff. In Regulation 5: Fit and proper person’s requirement for directors, the CQC states that individuals who have authority in organisations that deliver care are responsible for the overall quality and safety of that care. This regulation is breached if ‘A director has been responsible or privy to, contributed to or facilitated any serious misconduct or mismanagement’. Assault, sexual harassment of staff, bullying and victimisation of staff who raise legitimate concerns are all counted as serious misconduct or management.

The provider is responsible for showing evidence that directors are fit and abide by these regulations, and will address any issues that arise in light of new information. If, for example, a director is aware of any incident that constitutes bullying or harassment between employees, and this comes to light, the operator is responsible for the review, management or dismissal of this director. If this process is managed poorly, it can form a key line of inquiry during a CQC inspection.

Impact

As discussed, employees may not always realise that their behaviour constitutes bullying or harassment.  The fact that bullying or harassment was not intended does not mean that it did not occur.  What is acceptable to one person may not be acceptable to another.

When bullying and harassment occurs in the workplace, it can have an impact on the individual mentally, physically and on their performance at work.  From a mental perspective, it can cause psychological ill health such as anxiety, stress, and even panic attacks.  It can lead to physical symptoms such as high blood pressure and difficulty sleeping. From a work performance perspective, it can affect an employee’s ability to do their job, including difficulty in concentration, poor decision making, errors in their work, absences or lateness/leaving work early.

Bullying and harassment, and organisations with bullying cultures can also have a negative impact on the care service users receive. It is in everyone’s interest to prevent bullying occurring and to take prompt action if it does.

Dealing with bullying and harassment

The best way for employers to discharge their responsibility from the misconduct of their employees is to put appropriate measures in place to prevent bullying and harassment from occurring in the first place (such as training, policies, developing a supportive culture, etc.), to encourage reporting and to have clear procedures on how allegations will be addressed, and lastly to ensure that allegations are investigated and dealt with fully and without delay and with any appropriate action taken – including actioning any areas of learning to protect employees more fully in the future.

Allegations and investigations

Get further information and guidance by reading the full article, at https://www.hrsolutions-uk.com/bullying-and-harassment, where we also cover the following:

• Grievance
• Investigating claims of bullying and harassment
• Outcome of investigations
• Disciplinary action
• Follow up actions
• Mediation.

Further Guidance

• Further reading: The impact of a turbulent workforce on insurance and your exposure to claims in a Social Care setting

• Webinar Recording: you can watch the HR Solutions webinar about ‘How to Deal with Bullying and Harassment’, and download the webinar slides, at https://www.hrsolutions-uk.com/bullying-and-harassment.

• HR Knowledge Base: As a Howden Care client, you can get discounted access to the HR Knowledge Base, which is the go-to resource for thousands of business owners and managers across the UK.  The HR Knowledge Base includes HR documents, templates, legal updates, news and hot topic articles as well as access to free webinars and HR seminars.  To find out more call 0844 324 5840 or visit www.hrsolutions-uk.com/partnerships-howden.