17 Jan 2019

Harassment and bullying

at work
Understand the legal positions on bullying and harassment at work, and how employers
and employees can address the problem.

Introduction
Harassment and bullying remain significant workplace issues despite increasing
awareness of the problem. There are many typical harassment and bullying behaviours in
the workplace, from unwanted physical contact and shouting, to unwelcome remarks and
persistent unwarranted criticism. Recipients of these behaviours are more likely to
experience anxiety, be less satisfied at work and want to leave the organisation.

This factsheet examines the legal positions on harassment and bullying at work, and
outlines employers' and employees' responsibilities in addressing the problem. For
employers, this includes putting in place a policy which articulates the organisation’s
commitment to promoting dignity and respect at work; for employees, it means
supporting the organisation's policies and behaving in ways which encourage a tolerant
and inclusive working environment. Finally, this factsheet provides HR practitioners with
introductory advice on dealing promptly with complaints.

Explore our stance on bullying and harassment in more detail, along with actions for
Government and recommendations for employers.

What is harassment and bullying?

Bullying and harassment are terms that are often used interchangeably. However legally,
harassment usually has a very specific legal meaning. Under the Equality Act 2010
harassment is defined 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’. Harassment which does not relate to a protected characteristic is not covered

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by the Equality Act.

Bullying is not specifically defined in UK law but Acas’ advice leaflet says bullying 'may be
characterised as: Offensive, intimidating, malicious or insulting behaviour, an abuse or
misuse of power through means that undermine, humiliate, denigrate or injure the
recipient’.

What are harassment and bullying behaviours?

Harassment and bullying may be against one or more people and may involve single or
repeated incidents across a wide spectrum of behaviour, ranging from extreme forms of
intimidation, such as physical violence, to more subtle forms such as ignoring someone. It
can occur without witnesses, and takes place in face-to-face interactions, as well as online.
Examples include:

unwanted physical contact

unwelcome remarks about a person’s age, dress, appearance, race or marital status,
jokes at personal expense, offensive language, gossip, slander, sectarian songs and
letters
posters, graffiti, obscene gestures, flags, bunting and emblems
isolation or non-cooperation and exclusion from social activities
coercion for sexual favours
pressure to participate in political/religious groups
personal intrusion from pestering, spying and stalking
failure to safeguard confidential information
shouting and bawling
setting impossible deadlines
persistent unwarranted criticism
personal insults.

The continuing issue of sexual harassment in particular has been highlighted in the media
recently. A 2016 report Still just a bit of banter? showed that more than half of women
overall, and nearly two-thirds of women aged 18-24 years old, had experienced sexual
harassment at work. The Women and Equalities Select Committee report Sexual
harassment in the workplace includes recommendations.

Read our guidance on how employers should respond to sexual harassment complaints
and build gender-inclusive workplaces. CIPD members can use our more detailed
resource pack.

Research shows that people who experience bullying or harassment are more likely to be
depressed and anxious, less satisfied with their work, to have a low opinion of their
managers and senior managers, and to want to leave their organisation.

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The legal position
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more
on what the implications might be for employment law.

Harassment

In Great Britain, harassment on the basis of age, disability, race, religion or belief, sex,
sexual orientation and other protected characteristics is covered under the Equality Act
2010.

The Equality and Human Rights Commission has published a range of guidance on all
aspects of the Equality Act, including a Code of practice on employment. Whilst not legally
binding documents, the codes give important guidance on good practice and failure to
follow them may be taken into account by tribunals or courts.

The law protects individuals from harassment while applying for a job, in employment and
in some circumstances after the working relationship has ended (for example, in
connection with the provision of a verbal or written reference). There is also protection
for people against harassment on the basis of their membership or non-membership of a
trade union and, in Northern Ireland, against harassment on the basis of political belief.
(In England and Wales, harassment because of an employee’s political views is not always
automatically protected although employees who were dismissed on or after 25 June 2013
as a result of their political opinion or affiliation don't need two years’ service in order to
bring an unfair dismissal claim.)

Employers are liable for harassment between employees, and can also be liable for
harassment which comes from a third party (for example, a customer). Although the
government has removed express protection for this third-party harassment from the
Equality Act, liability can still arise as a result of other legal duties for example breach of
contract, direct discrimination, the Protection from Harassment Act 1997 and so on.
These other legal duties and good practice mean that employers should continue to take
steps to protect employees from harassment from anyone they come into contact with.

Bullying

The legal position with respect to bullying is more complex as there is no single piece of
legislation which deals with workplace bullying. In the UK, bullying may be covered by:

the Equality Act 2010, if it is linked to a protected characteristic

the Employment Rights Act 1996, especially the ‘detriment’ provisions
claims for breach of an express or implied term of the employment contract - for

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example, breach of the implied term to take care of employees’ safety or provide
reasonable support to ensure they can work without harassment and disruption by
fellow workers
criminal or civil provisions under the Protection from Harassment Act 1998.

Bullying might also be covered by a myriad of other legal principles and laws, for example:

the common law obligation for an employer to take care of workers’ safety
personal injury protection involving the duty to take care of workers arising out of
the law of Tort
Health and Safety at work etc Act 1974
Public Order Act 1986
Trade Union and Labour Relations (Consolidation) Act 1992 - dealing with special
types of intimidation
Criminal Justice and Public Order Act 1994
protection for whistleblowers under the Public Interest Disclosure Act 1998
Human Rights Act 1998.

Responsibilities of employers and employees

Bullying and harassment are still a significant workplace issue.

An employer must put in place a robust and well communicated policy and guidance that
clearly articulates the organisation’s commitment to promoting dignity and respect at
work. Employers’ responsibilities may extend to any environment where work-related
activities take place, such as work parties or outings. An employer could be liable for
events which take place on these occasions unless they can show they took reasonable
steps to prevent harassment.

Employers should be especially aware of ‘cyber bullying’. Detrimental texts sent via
mobiles or images of work colleagues posted on external websites following work events
could amount to bullying for which the employer could be liable.

Importantly, all individuals have a responsibility to behave in ways which support an

inclusive and tolerant working environment with zero tolerance for harassment and
bullying. They should play their part in making the organisation’s policy a reality and be
prepared to challenge inappropriate behaviour and take action if they know that
someone is being harassed. Individuals can be personally liable to pay compensation and
can be prosecuted under criminal as well as civil law.

Employers and individuals can be ordered to pay unlimited compensation where

discrimination-based harassment has occurred, including the payment of compensation
for injury to feelings.

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Developing a culture of respect

Prevention is better than cure and employers should promote a positive culture at work
for everyone based on personal respect and dignity, to help prevent inappropriate
behaviour in the first place. The organisation should send a clear message to all
employees that there is zero tolerance for bullying and harassment. Senior leaders
should have a clear vision and demonstrate strong values that communicate what a
culture of dignity and respect looks like in practice.

Policies, communication and training

A well-designed policy is essential to tackle bullying or harassment. Policies and any

accompanying guidance should be agreed with trade union or employee representatives
and be drawn to everyone’s attention. They should:

give examples of what constitutes harassment, bullying and intimidating behaviour,

including cyber-bullying, work-related events and harassment by third parties
explain the damaging effects and why it will not be tolerated
state that it will be treated as a disciplinary offence
clarify the legal implications and potential personal liability
describe how to get help and make a complaint, formally and informally
promise that allegations will be treated speedily, seriously and confidentially
and that the employer prevents victimisation
clarify the accountability of all managers, and the role of union or employee
representatives
require supervisors/managers to implement policy and ensure it is understood
emphasise that every employee carries responsibility for their behaviour.

All employees should:

be made aware - through induction, training, guidance and other processes - about
their rights and personal responsibilities under the policy and understand the
organisation’s commitment to deal with harassment
know who to contact if they want to discuss their experiences in order to decide
what steps to take
know how to take a complaint forward and the timescales for any formal
procedures.

The policy should be monitored and regularly reviewed for effectiveness, including:

records of complaints - why and how they occurred, who was involved and where
individual complaints to ensure resolution and no victimisation.

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It’s also essential that line managers understand their role in addressing all forms of
intimidating behaviour to stop it from being repeated, and that they have access to help
and support with appropriate confidentiality and sensitivity.

All dignity at work or anti-bullying policies should be co-ordinated with the organisation’s
grievance and disciplinary policy.

Advice and counselling

All employees who make a complaint should have access to someone inside the
organisation trained for this role or an outside sponsored service. This enables them to
talk in confidence about any intimidating behaviour they have experienced or observed so
they can discuss the options available to resolve the problem and decide what action to
take. The decision to progress a complaint should rest with the individual.

Guidance and counselling can be offered to people whose behaviour is unacceptable, as

well as those affected by being harassed. Simply punishing those responsible for the
harassment risks isolating individuals who may not understand that their behaviour is
inappropriate and affecting their colleagues.

Dealing with complaints

All complaints should be dealt with promptly. Some may be dealt with internally and
informally. But formal procedures should enable an appropriate manager or someone
from HR to take disciplinary steps against perpetrators where needed. A choice of contact
should be available in case the person’s manager is the alleged harasser. Employees can
also call the Acas helpline for advice.

Listen to our podcast: Handling harassment: are you getting it right?

Mediation

Our work on conflict management shows that a growing number of employers and
employees are open to using an independent third party to help resolve workplace
conflict. Mediation is a voluntary process and should be used in alleged bullying and
harassment cases where both parties are willing to participate and the complaint is not at
the serious end of the spectrum

Formal procedures

If informal approaches don’t work or aren’t appropriate, formal procedures should be

triggered. They’re needed if the harassment is serious or persists, or if the individual

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prefers this approach.

Organisations should have a clear formal policy to deal with all types of grievances and
disciplinary issues, including bullying and harassment.

Investigation

Formal allegations of harassment, bullying or any intimidating behaviour should be

treated as a disciplinary offence. Investigation should include:

a prompt, thorough and impartial response

taking evidence from witnesses
listening to both the alleged harasser and the complainant’s version of events
a time-scale for resolving the problem
confidentiality in the majority of cases.

Employers should always make a record of complaints and investigations. These should
include the names of the people involved, dates, the nature and frequency of incidents,
action taken, follow-up and monitoring information.

All sensitive information should be treated confidentially and meet the requirements of
data protection law.

Taking action

Where a complaint is upheld it may be necessary to relocate or transfer one of those

involved to another part of the organisation. It should not automatically be the
complainant who is expected to move, but they should be offered the choice where
practical.

Where the perpetrator is transferred, no breach of contract must occur or a claim of

constructive unfair dismissal could arise.

Confidentiality or Non-disclosure agreements (NDAs)

There’s a sharp focus on the use of non-disclosure agreements (NDAs) in cases of alleged
harassment or discrimination, and a government consultation on the issue is expected in
2019. Acas has issued revised guidance on settlement agreements stating that
confidentiality clauses should only be used when necessary and should not be included in
settlement agreements as a matter of course.

Where there’s alleged harassment or discrimination, HR professionals have a

responsibility to ensure that any confidentiality clauses in settlement agreements are
used ethically and appropriately, and that employees are fully aware of the legal status of

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such an agreement, including their inability to bring a future claim to an employment
tribunal. They shouldn’t be used to cover up cases of alleged discrimination and/or
bullying, or to deter a person from reporting misconduct such as making a protected
disclosure under whistleblowing legislation. See more CIPD guidance.

Useful contacts and further reading

Contacts

Acas - Bullying and harassment

Acas – Sexual harassment

GOV.UK - Workplace bullying and harassment

Equalities and Human Rights Commission – What is harassment?

Sexual Harassment at Work - legal advice telephone helpline provided by charity Rights of
Women

TUC – Reporting work-related violence

Counselling Directory

Books and reports

EQUALITIES AND HUMAN RIGHTS COMMISSION. (2017) Sexual harassment and the law:
guidance for employers. Manchester: EHRC.

EVESSON, J., OXENBRIDGE, S. and TAYLOR, D. (2015) Seeking better solutions: tackling
bullying and ill-treatment in Britain’s workplaces. Acas Policy Discussion Paper. London:
Acas.

HOEL, H., LEWIS, D. and EINARSDOTTIR, A. (2014) The ups and downs of LGBs’ workplace
experiences: discrimination, bullying and harassment of lesbian, gay and bisexual
employees in Britain. Manchester: Manchester Business School.

QUIGG, A-M. (2015) The handbook of dealing with workplace bullying. Farnham: Gower.

Journal articles

BURT, E. (2018) Firms reopening historic harassment cases in wake of #MeToo. People
Management (online). 13 December.

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FOX, R. (2017) Fair investigation of sexual harassment claims. People
Management (online). 28 November.

KIRTON, H. (2018) Employers should be duty-bound to prevent sexual harassment, say

MPs. People Management (online).25 July.

MAGEE, C. et al (2017) Workplace bullying and absenteeism: the mediating roles of poor
health and work engagement. Human Resource Management Journal. Vol 27 No 3, July.
pp319-501. Reviewed in In a Nutshell, issue 71.

Racial harassment in the workplace. (2011) IDS Employment Law Brief. No 937, November.
pp12-19.

RUBINO, C. at al. (2018) And justice for all: How organizational justice climate deters sexual
harassment. Personnel Psychology. Vol 71, No 4. pp519-544. Reviewed in In a Nutshell,
issue 84.

SUFF, R. (2018) Tackling sexual harassment in workplaces, including Parliament. CIPD

Voice. Issue 13, 26 February.

CIPD members can use our online journals to find articles from over 300 journal titles
relevant to HR.

Members and People Management subscribers can see articles on the People
Management website.

This factsheet was last updated by Rachel Suff.

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