In the wake of the Presidents Club scandal revealed by the Financial Times on 24 January 2018, employers ought to be even more acutely aware of appropriate standards of behaviour in the workplace or on social occasions relating to the employer outside of working hours. Here Gillian Howard looks at the law and good practice when it comes to allegations of bullying, harassment or discrimination.
Alleging discrimination, harassment or bullying is very distressing both for the recipient of the behaviour (not a “victim”) and for the alleged harasser or bully (who has to prove a negative — that they did not do it).
Discrimination, bullying or being “mobbed” can lead to serious injury to mental health and sometimes a complete breakdown. In such a case the complainant may sue for damages for injury to feelings (known as Vento* damages) and damages for personal injuries.
In Green v DB Group Services (UK) Ltd  IRLR 764 the bullying was so severe and sustained that Helen Green had a complete breakdown, could never work again and successfully sued the bank for personal injury damages of £800,000.
Employers must be wary of employees using the term “bullying” when actually they may mean they do not like the message, eg poor performance being delivered.
Acas, in its Guidance “Bullying and Harassment at Work” October 2010, gives examples of bullying such as:
spreading malicious rumours, or insulting someone
exclusion or victimisation
deliberately undermining a competent worker by constant criticism.
In any harassment or anti-bullying policy, employers should give clear examples of unacceptable behaviour such as:
repeated shouting at employees in public or private
excessive use of profanity/swearing directed towards an individual and/or an individual’s work products
targeted vulgarity and rudeness, personal insults or name-calling
uncontrollable and threatening anger directed towards an individual
repeated, blatant disregard by an individual for another person's personal time
spreading rumours with a deliberate intention to cause harm to an individual
deliberate and blatant disrespect to cultural differences
deliberate exclusion or continued isolation from work social activities
displays of offensive material
repeated requests for meeting up socially (after the recipient has made clear that these requests are unwanted), repeated unwanted displays of affection, or other repeated unwanted attention
unwanted physical contact (whether or not of a sexual nature)
abuse of authority (including use of intimidation, threats, blackmail, coercion, or requiring an individual to perform purely personal errands or tasks)
threats of dismissal, loss of promotion, depriving someone of work opportunities or other negative consequences
persistent, unjustified and/or unnecessary negative attacks on a person's personal or professional life
bullying, “mobbing” or abusive behaviour (in each case, by one or more individuals); “bullying” means behaviour, directed against someone, that is intimidating, offensive or malicious and undermines the confidence and self-esteem of that person
public or private humiliation and/or intimidation
threatened or actual violence whether or not directed at an individual.
What is not bullying or harassment
Employers should also give examples of what is not bullying. For example in a high performance environment, employees occasionally display frustration, irritation, disappointment or annoyance. Minor, one-off instances of this type of behaviour are not considered likely to amount to bullying.
It is also important to make the distinction between inappropriate behaviour, which will not be tolerated, and normal day-to-day conversations that managers and staff are expected to have with each other.
Transparent and fair discussions about workplace matters are appropriate.
candid feedback (which may include identification of an individual’s performance deficiencies or failures) that is to the point, factual and constructive: this feedback may be given informally, through coaching, or during mid-year or annual appraisal meetings
respectful collaboration and the sharing of ideas and views between colleagues, where people may not always agree: employers should encourage these constructive discussions and debates
putting an employee through a disciplinary process or taking measures to address performance improvement.
“Harassment” is specifically defined in s.26 of the Equality Act 2010 as unwanted conduct which is related to one of the following: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, and is unlawful.
The Act does not cover harassment directly because of pregnancy and maternity and marriage and civil partnership. However, pregnancy and maternity harassment would amount to harassment related to sex, and harassment related to civil partnership would amount to harassment related to sexual orientation.
In summary, harassment occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of violating that person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. Unwanted conduct covers the spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour.
The word “unwanted” means essentially the same as “unwelcome” or “uninvited”. “Unwanted” does not mean that express objection must be made to the conduct before it is deemed to be unwanted.
A serious one-off incident can also amount to harassment. In Insitu Cleaning Co Ltd v Heads  IRLR 4, the son of two of the directors entered the room where Mrs Heads was in a meeting and made a very lewd remark at her. Mrs Heads was far older than this young man and was seriously embarrassed and upset.
The young man denied making the remark and the employer insisted that Mrs Heads bring a grievance if she wanted to take the matter further. At this, she resigned and claimed unfair constructive dismissal and sex discrimination (harassment) and won.
“Bullying” according to Waters v Commissioner of Police for the Metropolis  IRLR 720 is acts that the courts and employment tribunals will recognise as bullying for which an employer can be held liable (for personal injuries) if the employer should have taken steps to stop the bullying, to protect the "employee" from it and they fail to do so.
Harassment by a third party, at a workplace event, eg Christmas party, can be very serious but employers are now not bound by the “three strike” rule, under the former s.40 Equality Act 2010 rule. That provided that where the employer knew that a third party was harassing any of its employees on at least two or more occasions and did nothing about it, the employer could be held liable for that third party’s acts of harassment.
However, employees may still be able to bring a claim for third-party harassment under the provisions in s.26(1) of the Equality Act 2010, arguing that the employer's failure to protect the employee from this degrading treatment is conduct related to a protected characteristic causing “a hostile, intimidating or degrading environment”.
The fall out in terms of reputational damage can be enormous as has been seen by the recent Presidents Club scandal.
Using the correct procedure
It is important to know under which procedure a complaint of harassment or bullying should be dealt. Some employers have separate complaints procedures for harassment and bullying and these procedures contain special safeguards and protections for complainants which assist them during the process. Some employers use the ordinary grievance procedure.
Complainants need to be reassured that they are not responsible for the action or responsible for any action taken against the alleged perpetrator — that it is a company decision and company responsibility and the complainant should feel no guilt or fear in complaining. Including the following example words in your bullying and harassment policy may help make this clear.
“We understand that reporting a complaint of harassment, discrimination or bullying (or indeed any unlawful activity) can be very frightening for a complainant. While we guarantee that what you say will remain confidential at any initial meeting, if the matter reported is sufficiently serious, then we as an organisation may decide that we need to deal with it as a matter of serious discipline. If you have any feelings of guilt, responsibility or fear as a result of reporting any such matter, we will give you every support we can. Please remember that everyone has choices. No one required the alleged perpetrator to behave in such a manner. We have trained all our staff in Managing Diversity and everyone knows what is and what is not acceptable behaviour.
We will take the decision as to whether or not disciplinary action may follow and at what level. You should not have any feelings of self-blame or fear that colleagues may respond negatively to you as a result of your reporting any such incidents. Of course there may be less serious complaints which can be handled in a much more informal manner, eg talking to the alleged perpetrator and asking him or her to stop their unacceptable language or conduct.
Anyone who is being subjected to inappropriate or unacceptable behaviour is encouraged to talk to a colleague, their line manager, occupational health adviser and/or HR. You will be taken seriously. We mean what we say when we say we have an 'Open Door Policy' and we encourage you to come forward.”
Some employers employ “buddies” or allocate a colleague who can support the complainant.
Investigating the grievance
The grievance has to be investigated very carefully and sensitively. In some cases employers find the use of an independent HR consultant as the investigator helpful, particularly in harassment cases.
The procedure should give guidance about how to investigate the complaint, eg by reassuring the complainant of no reprisals, etc and that they will be dealt with, with dignity and respect. There should be no comments of disbelief or asking questions which appear to be cross examination in nature.
An individual who has reported being harassed should not be questioned in a way which implies he or she has consciously or unconsciously invited the harassment. That is a form of harassment in itself and will add to the individual's experience of stress. Remarks implying that the harassing behaviour must have been meant as a joke, or that the harasser was only being friendly, or asking what clothes the individual was wearing at the time (in the case of sexual harassment) are similarly unacceptable.
If it is the case that a person's style of dress is in fact inappropriate to a working environment, that should be taken up at a totally different time and as a separate management issue and should not be raised for the first time following a complaint of harassment.
Investigating the complaint is a very serious matter and needs to be done sensitively and fairly. The alleged harasser has a difficult task — to prove a negative — ie that they did not do it.
The grievance letter should be read and the actual complaints highlighted and confirmed with the individual that those are the points of their complaint.
Acas guidance on conducting workplace investigations sets out how employers should go about investigating grievances, disciplinary matters, allegations, etc.
The broad principles are the following.
Establish the terms of reference for the investigation.
Draft an investigation plan.
Plan questions that need to be asked.
Speak to witnesses and take witness statements.
Obtain the evidence and if appropriate any CCTV footage.
Write the investigation report with what is the more likely explanation/version of events and a recommendation.
Submit the report to the manager making the decisions.
It is not uncommon where an individual has been subjected to discriminatory comments or harassment for that individual to make covert recordings either telephone conversations and/or conversations in person. Some employers make it clear that such conduct is regarded as gross misconduct for which summary dismissal could be one penalty.
However, while covert tape recordings made by an employee are deplored by the employment tribunals, they are admissible as evidence. The Employment Appeal Tribunal (EAT) held that covert recordings are "somewhat distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly or fairly" (see Amwell View School, below).
Any private conversation covertly taped may not be admissible as those individuals would have a reasonable expectation of their right to respect for privacy (Article 8 of the Human Rights Act 1998) — in the case Chairman and Governors of Amwell View School v Dogherty  ALL ER 216 the private and genuine deliberations of the School Governors when the appeal hearing adjourned were ruled inadmissible by the EAT.
However, even private deliberations can be admitted into evidence where they are deemed not to be part of the genuine deliberations of the panel.
In Punjab National Bank (International) Ltd & ors v Gosain (UKEAT/0003/14), extremely vulgar, discriminatory comments were made by the adjudicating panel in private. These were held to fall outside the deliberation of the actual issues that needed to be considered as part of the decision-making process and were therefore outside the protection applied to “genuine deliberations” by a panel.
*Vento v Chief Constable of West Yorkshire Police  IRLR 102, provides guidance for three bands of damages: the lowest band, £1000–£8400; the middle band, £8400–£25,200; and the highest band, £25,200–£42,000 (with exceptional cases exceeding £42,000).