“I didn’t mean any harm – I was just having a laugh!”

“I didn’t think she was going to take it so personally”

Sound familiar?

We all like a good atmosphere in the workplace and a vital ingredient in creating that atmosphere is being able to have a laugh and a joke with the people we work with.

But – sometimes – it goes too far

If it does go too far, and it becomes harassment or bullying, that can lead to claims against the employer and the individual employees responsible.

What is bullying and harassment?

Bullying can include crude remarks, rude and sarcastic comments and laughing or whispering about someone else.

It could also include apparently innocuous things such as removing items from somebody’s desk, omitting somebody’s name from an internal circulation list or making derogatory remarks about someone’s appearance.

Harassment is defined, broadly, as conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. 

Sexual harassment is one of the most common forms of harassment and can include physical contact or unwelcome sexual comments – e.g. advances, propositions or pressure for sexual activity or suggestions that sexual favours may further an employee’s career or refusal of sexual favours may hinder it. 

We live in the 21st century. Surely the message is getting through? Judge for yourself – have a look at these recent cases

Case one

Dundee City Council employed Mr Duncan to supervise women on community service.

Many of these women had been abused by men in the past.

Duncan provided detailed information to these women about his own sex life and preferences, showed them a mobile phone video of a couple engaged in a sex act and asked one woman if she was wearing anything underneath her boiler suit (I am not making this up).

When Duncan’s conduct was investigated his boss said he had actually received several complaints about Duncan and witnessed his inappropriate behaviour. He admitted that, with hindsight, he should have done something about it!

In this case, Duncan brought a claim of unfair dismissal against the Council – it was rejected. 

The Council will do well if it avoids claims from any of the affected workers for sex discrimination (the Council could be vicariously liable for Duncan’s sexual harassment).

Case two

In a case arising in Brighton, the Employment Tribunal decided that the employer referring to one of his employees as a “chutney ferret” had offended his dignity and this constituted harassment on account of sexual orientation.

Case three

A slightly different sexual orientation case.

Mr English was subjected to “office banter” regarding his sexual orientation as a result of a manager discovering that he had attended a boarding school and lived in Brighton (what is it about Brighton?). 

Mr English’s colleagues teased him for years.

Mr English complained that he had been subjected to unlawful harassment on the basis of sexual orientation.

Mr English is not gay. He accepted that his colleagues did not think that he was. He was simply teased due to having stereotypical characteristics – going to boarding school and living in Brighton. 

The EAT found that, as the law stands at present, Mr English was not unlawfully harassed because he was not gay and no-one thought he was gay.

So, does this give employees carte blanche to say what they want about other employees (e.g. remarking that they must be a *** because they have short hair and don’t wear a skirt?) provided no-one believes they actually are gay?

Perhaps, but it may be short lived.

Mr English has been given leave to appeal to the Court of Appeal. The EAT commented in their decision that had they been able to rely directly on the wording of the European Directive, as opposed to UK law, the outcome of the case might have been different.

The law may well be changed shortly either as a result of a Court of Appeal judgment or an amendment to the sexual orientation legislation.

Claims

What is the downside for employers and employees if there is bullying or harassment?

There are plenty of claims that a bullied or harassed worker can bring against their employer – and the individual employees concerned (including Managers involved in the investigation etc – so be careful HR Managers)

A claim like this could be extremely expensive and, for the individual perpetrators, career-threatening.

As an employer, you might be liable even if you knew absolutely nothing about the bullying or harassment (if you hadn’t taken reasonable steps to prevent it occurring).

What are these potential claims?

• Discrimination – sex, race, age etc

• Constructive unfair dismissal

• Protection from Harassment Act claim

• Negligence

Criminal – There is also the possibility of criminal prosecution against individual perpetrators (prosecutions are increasingly common).

Action Points

Ok. What can Employers actually do to prevent bullying and harassment and try to avoid claims being brought against them?

• At the risk of stating the obvious we, as employers, have to keep our eyes and ears open – and if we see or hear about something untoward then we have to deal with it.

• Deal with harassment complaints (even where they are based on office jokes) seriously and promptly. 

• And, we know you are probably tired of hearing this, but you really do need to have Equal Opportunities and Harassment policies. If you don’t, you will struggle to defend a harassment/discrimination claim - employers will very often be vicariously liable for the acts of their employees.

• Train people on the policies – particularly managers, but also employees. I think one of the most shocking things about a lot of the cases in this area is that the people involved really didn’t realise that they were doing anything wrong. Bullying can often stem from petty jealousies and insecurities and it is worth ensuring that employees are aware that cold shoulders and whispered conversations can amount to bullying. 

• Counseling services or helplines – these can protect an employer from claims and help establish that they have taken reasonable steps to prevent harm. Such services can also be relatively cheap. 

Remember, none of these steps need be time consuming or expensive – and they work.