When bullying goes on behind the screen  

In the run-up to this year’s Anti-Bullying Week, which runs from 16th– 20th November 2020, employers are being encouraged to look at how new styles of working may be affecting employees.

Employers are being encouraged to focus on how they manage and respond to bullying and harassment issues, including cyberbullying, in the new virtual working landscape.

Working away from the office, staff may be missing working alongside their colleagues and the chance to have face-to-face meetings, according to a YouGov poll, but few will miss the fear of dealing with colleagues or managers who subject them to bullying and harassment.

For many who are affected, working from home will not have stopped the bullying, and may even have exacerbated it, with colleagues less likely to see what is happening and a more informal structure.  The new ways of working may also see more workers become victims of bullying where the pressures of working online and interacting through virtual spaces results in micro-aggression and cyber-bullying, with workers more likely to feel isolated and actions of others more easily misinterpreted.

Figures from the TUC indicate that around a third of people are bullied at work, with women more likely to be the subject.   Around three-quarters of cases involve bullying by a manager, making specialist training and development an important route to tackle the issue.

This is echoed in further research, undertaken recently by the Chartered Institute of Personnel and Development (CIPD), which found that of those workers who had been bullied or harassed at work, 40% say their manager was responsible.

There is no legal definition for bullying, but it is described by the conciliation service Acas as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.

And while bullying itself is not against the law, the impact of such behaviour may be.

In the UK, the Equality Act 2010 prohibits discrimination and harassment that is related to a protected characteristic.  These are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation; also, pregnancy and maternity where the protection against harassment is subject to slightly different rules.

Bullying may become harassment when a worker is subject to unwanted conduct related to a protected characteristic which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Examples include making offensive sexual comments, or abusing someone for their race, religion or sexual orientation.

As well as the more obvious example of being humiliated in front of colleagues through verbal abuse, it could include blocking promotion, malicious rumours, or sharing criticism where others do not need to know.

In today’s working-from-home environment, there may be cyber-bullying, such as repeated check-ins and chasers from managers, which may be more likely to arise when there is distrust that staff are maximising output in an independent working situation, or where poor working relationships are subjected to additional strain and lack of communication away from the office.

And while employers may question whether they are liable for the actions of such employees, perhaps because it happened away from the formal workplace or out of office hours, this will be down to whether the conduct has resulted ‘in the course of their employment’.

All employers have a duty of care to protect their workers and can be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it.  Such claims can be very costly, from both a financial and reputational perspective.

And it’s not just the implications of the claim itself.  More than one in three people who report being bullied at work will leave their job because of it, leading to recruitment and development costs to replace these lost skills.  And while persistent harassment may lead to poor work performance and attendance, and ultimately dismissal, the root cause, such as racism or homophobia, may never be acknowledged.

The current situation is a real stress-test for the culture of the business and the strength of its employment policies.  Whatever the challenge, everyone is entitled to work in a safe environment, free from bullying and harassment.

As well as being bad for morale and productivity, bullying is bad for attraction and retention. So it certainly pays to review carefully how a business is operating, ask and listen to staff, and make sure to involve all managers in understanding where the boundaries will be, and how they can help to safeguard the welfare of their team.

While one person may think they are making a joke, another may find it offensive or humiliating, which is why it is so important to spell out behaviour expected and make sure everyone knows what is or isn’t acceptable.

In the CIPD-commissioned research, a third of employers said one of the biggest barriers to effective conflict management was that managers did not demonstrate the confidence to challenge inappropriate behaviours, highlighting the importance of training and ensuring all levels of management know what is expected of them.

The research also showed that many who had suffered bullying at work could not face the process of reporting an incident.  Of those who said they had been bullied, 63% of women and 79% of men said they did not report it.

However, lack of reporting does not mean they may not be able to take their case to an Employment Tribunal.   There is no length of service requirement for an Equality Act claim and claims can be brought by job applicants, workers or employees, and by ex-employees or workers.  And since the abolition of fees to bring a claim, Ministry of Justice reporting shows the number of actions has risen by almost 20% overall.

In addition to arguing that claims under the Equality Act related to a protected characteristic, employees may have a case under the Protection for Harassment Act 1997.  This would cover a course of conduct which resulted in oppressive behaviour on at least two occasions.  Under this Act, an employer may be vicariously liable for acts where they are committed by employees in the course of their employment.

When bullying leads someone to resign from their job, they may have a case for breach of contract or constructive dismissal, or if it has an impact on their mental wellbeing, when employers have a duty to protect safety and welfare while at work.

Evidence shows that employees often do not report incidents because of fears over how it may be handled, or whether it may weigh against them in their future career development, particularly where a manager is involved in the bullying.

The Equality and Human Rights Commission recommend that every business has a written policy, setting out how harassment at work is unlawful and making sure all staff understand that such behaviour will not be tolerated and may be treated as a disciplinary offence.  Giving specific examples of what constitutes unacceptable behaviour in different situations is useful in helping people understand boundaries, together with guidance to staff on how to respond and deal with such behaviour.

Most importantly, there must be a clear process for what to do if anyone feels they have been subject to any form of harassment, including a safe environment for reporting and handling any complaints.

However large or small the company, top of the agenda should be a focus on the best possible attitude towards equality and diversity in the workplace.  Management should lead the way in demonstrating that everyone, from the top down, has zero tolerance towards all forms of inappropriate or intimidating behaviour.

To discuss this, or any other employment-related matter, please contact Jane Crosby on 01483 887766, email us or start a live chat today.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Jane Crosby

Partner, Dispute Resolution & Accredited Mediator

Jane is an employment and commercial litigation solicitor of more than 15 years' experience. Prior to entering the legal profession, Jane was employed in the...

Partner, Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is an employment and commercial litigation solicitor of more than 15 years' experience.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.

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