Member Article

Bullying & Harassment - early implementation of mediation?

Harassment that is sexually based or sexual, or on the grounds of gender reassignment, status, race, ethnic origin, national origin, disability, sexual orientation, religion belief or age, is defined in the appropriate legislation as an unlawful act.

Harassment on these prohibited grounds will occur when a person is subjected to unwanted conduct that has the purpose (intentionally) or effect (unintentionally) of violating that persons dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Under the statutory definition of harassment, where no intent to offend can be established, the unwanted conduct will only regarded as having the “effect” of harassment, if that could be regarded as a reasonable conclusion when taking all the circumstances into account including, in particular, the perception of the person who is being harassed. In other words; if a person thinks it’s harassment, then it’s harassment. This of course leaves a lot of room for interpretation.

Devil in disguise

This test of “reasonableness” may mean that in some circumstances a complainant who takes offence would not be considered as having been harassed. For example, comments like “You’re the devil in disguise” when talking to a Christian or “That must be a real handicap for you” when talking about a non-related disability issue to disabled person, or “She’s such an old dear” when a 20 year old is talking about another co-worker to a 60 year old colleague, would be regarded as merely regrettable.

There is no one common definition of exactly what bullying means.

Bullying is a sustained form of psychological abuse, where the perpatrator embarks on a course of aggresive and abusive behaviour, with the objective of slowly wearing the victim down so that he or she feels demeaned and inadequate. But before the company can deal with the problem, it needs to know precisely what the problem is. The company needs to be able to identify the type of behaviour that constitutes bullying and the impact that it has on the victims.

A useful working definition

Bullying is offensive, intimidating, malicious or insulting behaviour, or an abuse or misuse of power, which has the purpose, or effect, of belittling and humiliating the recipient, leading to loss of self-esteem for the victim and ultimately self-questioning his or her worth in the organisation and society as a whole.

Harassment can take a number of different forms, including;

• Verbal and written forms of harassment, such as crude language, offensive jokes, expressions of racist, sexist, homophobic or similarly offensive views, pranks, uneducated stereotyping, suggestive remarks, innuendoes, lewd comments, wolf-whistles, gossip, offensive letters, offensive songs and various forms of offensive or threatening or demeaning electronic, mobile communications, including email and text messages.
• Physical contact, ranging from unnecessary touching, patting, pinching or brushing against another co-workers body, through to assault to physical coercion.
• Display of posters or pornographic material, including downloading material or displaying material from the internet, obscene gestures, graffiti and offensive objects.
• Coercion, ranging from pressure for sexual favours to pressure to participate in political, religious or trade union groups.
• Intrusion by leering, following, pestering, spying and voice-mail messages.

Technology has produced a new form of harassment. Unwanted and offensive remarks can be sent by email or as text messages left on mobile phones or left as voice-mail messsages. With the advent of mobile phones that can capture and transmit digital pictures, there have been cases of compromising pictures being obtained and transmitted back to the subject of the picture, or being passed around the workplace.

Harassment by third parties - duty of care

From 1st October 2013 the third party harassment legislation was repealed. However, in circumstances where an employer fails to prevent third party harassment, there are two potential claims which can be lodged under the Equality Act 2010.

1. a direct discrimination claim, where an employer failed to act because of a protected characteristic which results in less favourable treatment of the employee concerned when compared to other employees.
2. a harassment claim, on the basis that the employer’s inaction amounts to unwanted conduct related to a protected characteristic that violates the employee’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

Staff can also resign and claim constructive dismissal for breach of trust and confidence where they are subjected to third party harassment which the employer ignores. Also, the member of staff may call in the Police, claiming that a criminal offence has been committed under the Protection of Harassment Act 1997.

Defending claims

It is up to the company to show that it took all reasonably practicable steps to prevent staff from committing discriminatory acts. This means that the organisation has a particular role in communicating the organisation’s policies on such matters, including defining the acceptable use of electronic and mobile communications for company purposes. Any failure by the organisation to supervise and deal with problems once they have come to the attention of the company management increases the risk of liability.

Health and Safety takes priority over “confidentiality“

Sometimes a manager may be faced with a difficult situation where a victim has described a disturbing pattern of discrimination, harassment or bullying but states the he or she does not wish for any action to be taken.

The company has a common law duty of care for the Health and Safety of all its employees. If the victim is not prepared to address the issue, then the company and/or its management must, as they and/or the company could be held liable if damage results.

Where Health and Safety is at risk, it must take priority over “confidentiality” and the company must take some form of action appropriate to the circumstances. A thorough investigation of the situtation must take place, including discussions with the victim to determine the precise reason for not wishing the organisation to take any action, before any further action is taken.

A well-written personal harassment/bullying policy and procedure which is clearly understood by all concerned is a good first step. Thereafter, training and updating of all staff and management responsible for such matters is essential if the company is to avoid costly litigation.

If you don’t have an Anti-Harassment and Bullying Policy in your organisation then please contact me via my website and I will forward you a FREE downloadable Anti-Harassment and Bullying Policy, which you may customise with your company logo.

Use this policy to inform employees about unacceptable behaviour and to provide victims with a means of redress.

Alternatively; to assist in avoiding bullying and harassment allegations ’getting out of hand’ organisations should consider the implementation of mediation being offered as a cost-effective and an early intervention and solution to many forms of interpersonal conflict in the workplace.

Could this be the answer to many allegations of bullying and harassment ever progressing further up the organisation’s formal procedures, or even on to costly litigation by the matter being addressed, via a skilled and professionally qualified workplace mediator, by the disputants themselves?

This was posted in Bdaily's Members' News section by Andrew Dane .