Last reviewed 15 April 2016
Take care! says Bob Patchett, harassment and bullying occurs in the best regulated organisations. It shouldn’t, but, regrettably, it does. Employers therefore need to set up and operate a regime to eliminate harassment and bullying, backed by a system that deals swiftly and effectively with breaches that occur. Failures of these preventive and reactive measures are likely to result in an aggrieved employee winning a case in an employment tribunal against your organisation, which would then be required to pay huge compensation. This, in turn, might attract publicity that portrays you as a poor employer.
So you need to formulate and publish a policy, making clear to everyone in your organisation, from shop floor to boardroom, that harassment and bullying will not be tolerated in any form and also, most importantly, making clear what exactly the terms mean. There is little point in defining harassment and bullying separately; they are any inappropriate action that makes an employee feel threatened or uncomfortable at work.
Many otherwise decent people would say that an occasional mild sexist or racist joke does no harm, but they are wrong. Someone may be offended. The good looking young lady may smile at comments made about her figure, while being embarrassed or even hurt, but puts up with the remarks so as not to cause trouble. The Scotsman in the warehouse puts up with being called Jock, but would much rather be called by his proper name like everyone else.
Everyone is protected
The Equality Act 2010 offers protection to specified groups of people, but, in reality, everyone is protected against harassment and bullying. The offence may not be direct, for example, a woman can be offended and claim harassment if nearby men show each other pornographic pictures. There is no scale of severity of offence with a line indicating an acceptable and unacceptable divide. Nor is there any measure of the degree to which the recipient of comments or actions is offended, the test in law being whether a reasonable person might be offended.
If an employee feels threatened or is made to feel uncomfortable for inappropriate reasons, then you have a problem, because a person who has put up with it for some time may suddenly snap, and commonly people take their employer to law for a first incident in the hope of winning compensation.
The need for training
Once you have published this policy, you should train everyone in its application. A statement on the notice board is not enough. The policy and what it means should be issued in writing to every employee, perhaps in the employee handbook, but everyone should be given training in what the policy means to them in practice.
They should be given examples. Some are obvious, some are not, such as Jock in the warehouse. Ask the employees how they would feel if they worked in Scotland and were always address as Limey. How would they feel if they were drinking Guinness in a crowded Dublin bar where everyone was laughing at jokes against the English? How would they react to someone making sexist remarks about their wife?
Allow time for discussion, to let people air their concerns, to give them time to think before leaving. Hit home hard with plenty of “how would you feel if ...?” questions. Most important, ask people in the room to say what causes them offence or discomfort, because their colleagues may not be aware of the hurt they are currently causing and will stop doing it to their friend and indeed will cease doing it to anyone else.
This is more powerful than being instructed by a manager. And make sure to explain in your employment rules that harassment and bullying constitute gross misconduct that is likely to lead to summary dismissal.
You need to instruct all management staff — anyone who has responsibility for other employees — how to deal with reports of harassment and bullying, whether they come directly from aggrieved people or from someone who has witnessed an incident. If the matter is reported to you, deal with it promptly and effectively. Talk first to the victim in a private environment and explain that you are perfectly happy for them to bring along a work colleague if they so wish. Listen carefully to what the employee has to say and make notes as you go along.
Do not, in any way, diminish the incident by saying, for example, “she did not mean any harm”, because clearly harm was done. Or, “well, men are like that” because they should not be. You have in the room an unhappy employee, whereas you need a happy employee who will not take you to court. The incident may not be your fault. Nevertheless, apologise on behalf of the organisation and indicate what action you intend to take. You must leave no doubt in the employee’s mind that you treat the matter as serious.
Next, you should carry out a thorough investigation. In many cases, this means that you only need talk to the perpetrator, but, if necessary, conduct a normal disciplinary investigation or have another manager do so in order to maximise objectivity. In many cases the person accused will be shocked, not having realised that whatever was said or done caused offence, and you may detect that he or she is highly unlikely to repeat the offence. Here you need to exercise your judgment. You may feel it sufficient to give the accused person an informal warning. You may feel it prudent to have him or her meet the person offended to give an apology. However, if there is any doubt in your mind, then proceed in accordance with your disciplinary procedure. Complete the investigation, conduct a disciplinary interview and make a judgment. You have a whole range of sanctions. If the offence was minor, the offended person not burning with rage, and you are convinced that the accused person is truly contrite and will not repeat the behaviour, then a written warning may be sufficient. A more serious offence would certainly warrant a final warning. And if you consider that what was done was totally unacceptable, then summary dismissal would be the appropriate sanction. You cannot afford to employ bullies or serious harassers.
You really do need to work proactively to keep your organisation free of this blight on the workforce, but it is not the responsibility of your employees to manage the issue. Certainly, they have to behave in ways that do not cause offence or improper discomfort, but it is the job of you and your management colleagues to make sure that they do. Every manager, therefore, needs to remain alert to how his or her employees talk and behave. If you notice an employee getting close to breaching the policy — a slightly risqué joke, a perhaps inappropriate physical touch — have a word in their ear. Anything more serious and you are in disciplinary territory, informal or formal as appropriate. Nip the behaviour in the bud, so that it does not develop into a real problem.
None of us is perfect. Employees sometimes unintentionally break the rules. However, this is serious stuff, so be vigilant, act decisively and keep your employees happy, and yourself out of court.