Nearly one-half (44%) of managers claim they were bullied in the past year, according to research by the Work Life Balance Centre. Employees at organisations with between 250 and 1,000 or more than 5,000 staff claim to have been most affected. Around 12% of people reported being bullied by other colleagues, rather than by a manager.

But what constitutes bullying, and how should businesses manage claims? In law, bullying and harassment are two very different points. The key difference between bullying and harassment is that for conduct to amount to harassment it has to be done for a prohibited reason such as the victim’s sex, race, religion and so on.

Bullying, on the other hand, can be indiscriminate and therefore takes a variety of forms, from being rude or belligerent, to destruction of property and even physical assault.

What amounts to bullying may not necessarily be harassment, so the fact that an employee claims to have been bullied will not automatically give them a legal remedy. But, a bullied employee could possibly claim unfair constructive dismissal under the Employment Rights Act 1996.

Broken trust

Employers should not forget that there is an implied contractual term of trust between themselves and their employees. This could add a further avenue for breach of contract to any possible claim. The employee would need to satisfy a tribunal that the conduct was sufficiently serious to destroy or seriously damage the relationship of trust, resulting in resignation as their only option.

However, for any employee to bring a claim to an employment tribunal there has to be legislation under which to bring the claim. A claimant can stipulate any one of the following legislative acts that their claim falls under: Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (for issues of religion or belief) Regulations 2003, and Employment Equality (Age) Regulations 2006. Generally these acts talk about violating dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.

Under new law, the employer is legally responsible for ensuring that they have done everything possible to avoid workplace conflict. Recent case law means that a tribunal can require employers to investigate complaints of bullying thoroughly, take steps to resolve workplace conflict and ensure that strong management does not cross the line into humiliating or offensive treatment.

It is also worth noting that an employee who suffers any physical or psychiatric injury, as a result of workplace bullying, could bring a claim of negligence and/or a personal injury claim.

If an employee proves their case, then the rule of vicarious liability will apply. This means that the employer will be liable to pay any award unless they are able to prove they took reasonable steps to prevent the acts in question from occurring. Even then, the employer may not escape liability, especially since the employee could bring a claim against both the employer and the abusive employee as joint respondents in the claim.

Bear in mind that any employee would have to be in employment for one year before being able to bring a claim to tribunal ­ this is not the case under discrimination laws.

Under dispute resolution procedures, a claimant has to have raised a grievance with the employer before taking the matter to tribunal. However, there has been talk about these procedures being reviewed, so be aware that these rules may change and being proactive with employees may well be the best course of action.

Prevention better than the cure

Of course, it’s easier and more cost effective to try to prevent bullying or harassment altogether. A ‘dignity at work’ policy is essential in this case. This clearly sets out the expected conduct of staff while at work. But like m any initiatives that are implemented in the workplace, it needs to be properly supported. Managers need to be made fully aware of the policy and what it entails.

Establishing a zero-tolerance approach is also a good way to further bolster a dignity at work policy. But it is important to recognise that people can be dismissive of this type of action, so keeping it on the agenda
means that people are kept in check.

The key point to remember is that if an individual feels they have been harassed then that, in itself, means they have been harassed ­ so employers need to be understanding. It is a shame that the world of work has become so litigious, but there are still unsavoury characters in the workplace ­ admittedly, a minority, but it is a reality.

However, there is a fine line to be drawn: don’t allow your staff to be too scared to manage. A recent example I experienced first hand is a manager who told me that he would be uncomfortable telling a female member of staff if they were scruffily dressed through fear of claims of harassment. This is unfortunate and unnecessary. There is always a balance to be struck.

Alyson Pellowe is founder and managing director of People Vision

www.pvhr.com