Differing views on what constitutes
One of the major issues is the differing perceptions of what actually constitutes bullying - what makes one employee feel uncomfortable and intimidated may well be dismissed by another as part and parcel of workplace life.
Bullying is most commonly associated with physical conduct or verbal insults. This is not always the case. Employers should be aware that negative behaviour amounting to bullying can take place in a wide range of circumstances. ACAS states that bullying can mean 'offensive, intimidating, malicious or insulting behaviour'.
For example, encouraging others to exclude and ignore someone is as much a case of bullying as the more obvious example of negative or insulting comments - whether verbal or written. What about cyber bullying, deliberate overloading of work on an individual or using them as a scapegoat?
Bullying often goes unrecognised, and in the vast majority of cases is never acted upon. Individuals are often reluctant to speak up for fear of being labelled oversensitive or of losing their job - a particularly significant factor in the current climate.
Wy should employers take action on bullying?
There is no freestanding claim of bullying. However, there are other relevant claims an employee could bring and which you should be aware of. In addition to the legal risks, there are numerous other reasons to take action.
Bullying does not only affect the employee personally as an employer you may also find that it impacts their performance, health and attendance as well as the atmosphere at work.
If an individual is being bullied, they may not want or feel able to come in to work and you may find that there is increased absenteeism or that they self-certify as sick and unable to work. It's often the victim rather than the bully who ends up leaving if no action is taken - you will have to find and train up a replacement, meanwhile the bully is still a risk to your workforce.
Another reason to take action against bullying in your business is the reputational damage that can be caused. If the bullying is by members of management, then it's going to be very difficult for you to disassociate the business from the conduct that has been occurring. If the bullying is between members of your workforce and you do not take action to deal with it, you may be seen as turning a blind eye and it could be seen as part of your culture.
Employers' duty of care to employees
If the bullying relates to one of the protected characteristics under the discrimination legislation (which will be harmonised in the Equality Act 2010) then it could amount to harassment - you could be liable for failing to protect your workers from harassment in the course of their employment.
Certain terms which are implied into the employment contract are also relevant - for example mutual trust and confidence and to provide a safe and suitable working environment. A breach of these terms could lead to an employee resigning from your business and claiming that they have been constructively dismissed.
The Protection from Harassment Act 1997 (PHA) is also relevant if the conduct is of a sort that could sustain criminal liability. Although originally introduced to deal with the issue of stalking, in recent years it has been applied in a civil and even employment context.
The PHA makes it an offence to pursue a course of conduct which amounts to harassment (conduct which causes the victim alarm or distress). It provides for both criminal sanctions and civil remedies. Damages may be awarded not only for psychiatric injury suffered, but for any anxiety and financial loss resulting from the harassment.
Employers found liable under the PHA
Although rare, in recent cases employees have successfully been awarded damages against their employers under the PHA:
Veakins v Kier Islington Ltd 
Here, the employee was humiliated by her supervisor who also tore up and threw away her letter of complaint without reading it, questioned colleagues about her private life (which she believed was in order to pursue a campaign of victimisation against her) required her to sign in and out every day and stopped her from being picked up on the way to a particular regular job. The supervisors behaviour had been sufficient to establish criminal liability - it was oppressive and unacceptable.
Rayment v Ministry of Defence 
The conduct in this case which was sufficient to amount to harassment under the PHA included the inappropriate issuing of a final written warning, relying on an administrative error to terminate employment and the continued reposting of pornographic pictures on the walls of the restroom after a complaint was made.
How can employers spot bullying?
Signs of bullying can be wide ranging and there's no simple checklist. One indicator of bullying is a change in the victims character. If they become more reserved or less enthusiastic, this could be an indicator that something is wrong.
Bullying may also cause a loss of social diversity in the workplace. If certain individuals are keeping close as a group, then it will be obvious who is being excluded. This lack of diversity can also extend to work, as it may become obvious that certain individuals are excluded from certain projects or assignments.
Actions by the offender(s) may also indicate bulling. A propensity to distort the truth and reality, being two faced and blaming others for errors are all things that are commonly associated with workplace bullies.
Promoting good behaviours to prevent bullying
A common mistake that organisations tend to make is that they only tackle negative behaviours once they take place. Promoting good behaviours in the workplace, and setting standards of these positive behaviours, can help to prevent this negative behaviour occurring in the first place and will put you in a better position to defend any claim.
It's important that you have a clear procedure or policy to deal with allegations of bullying and harassment. If an employee raises an allegation of bullying then you should promptly take action to deal with it, in line with your procedure. It may be that it can be dealt with using informal stages of your procedure and that the individual is satisfied with this response.
Dealing with grievance claims
If you cannot resolve the claim using informal stages of your procedure, you will need to proceed to the formal stage - it could also be that the complaint is raised formally from the outset. This will usually involve investigating the complaint thoroughly as a grievance and taking appropriate action against the bully if you find that harassment or bullying has occurred.
If dealing with the matter under your grievance procedure, you should also hold a grievance meeting with the individual to allow them to explain their grievance - the employee has the right to be accompanied by a trade union representative or colleague at this meeting. Once you have undertaken any further investigation, you should confirm your decision and any action you plan to take to resolve the grievance and give them the right to appeal against this decision.
Only very large businesses will usually have the luxury of internal counselling services, but there are a number of external organisations and charities who provide support to victims of bullying. Employers should encourage victims to speak to one of these services and receive support, in addition to internal measures.
Additional points to consider
Points to consider:
Consider whether you need a separate written antibullying and harassment policy (or whether it is sufficiently dealt with under your grievance procedure).
- The policy should contain information about what employees can do if they feel they are being bullied not only formal procedures but informal and confidential internal helplines or forums.
- A clear policy which is correctly and actively implemented may help you to defend some claims by showing that you have taken reasonable steps to prevent discrimination.
- Training should be given to managers on bullying, including how to spot any signs that it is taking place and how to respond to these.
- Take steps to try to remove a culture where 'victims' are afraid to come forward, or managers are reluctant to interfere.
Monitoring opinions of bullying within the organisation and gathering information on a confidential basis may assist you to keep tabs on the feelings within the workforce.
- Investigate allegations of bullying promptly and sensitively. Keep details confidential other than on a need to know basis.
- If, having investigated the complaint, you conclude that bullying or harassment has taken place you may decide disciplinary action is necessary against the perpetrator. Ensure you follow your disciplinary procedure in dealing with this so that any resulting sanction will be fair, particularly if the procedure could result in their dismissal.
- Consider whether there are any steps you can take to help the individuals in question to continue to work together - this could be mediation, changing reporting lines, training, supervision or counselling.
It's an issue of workplace culture
Tackling bullying is about much more than just a policy. You need to actively promote positive working relationships.
Focus on presenting positive opinions, to create a workplace where appropriate ways of behaving are clearly communicated, promoted and supported.
Use different ways to encourage victims to come forward for example giving them access to a counsellor or mediator if possible. Training at every level of the organisation must be given, so that no one is seen to be 'above' bullying, and your employees can see difficult issues being dealt with quickly and fairly.
Taking these sorts of actions will mean that you are significantly better placed to defend any legal complaints made against you for bullying or harassment. It will also help to avoid the adverse consequences of bullying on the operation of your business.