Employers should ‘focus on the impact of bullying, not perpetrators’ motives’

Out-Law News | 26 Nov 2020 | 11:52 am |

April Horsman tells HRNews that it is the effect of workplace bullying or harassment that is the central issue when managing allegations.

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  • Transcript

    If a manager is accused of bullying or harassment and they say they didn't mean it does that excuse their behaviour? It is a question doing the rounds at the moment, as you may have noticed, and Personnel Today takes the opportunity to remind HR that a lack of intention is not a mitigating factor in issues of bullying in a workplace. So in harassment cases, it is the impact that matters, not the motive of the perpetrator. The article goes on to explain how bullying is one of the most emotive and tricky issues that HR has to deal with, raising deeply personal allegations and, often, an abuse of power. We agree with that – it often involves a more junior employee making allegations against a more senior manager and that can be difficult on many levels. So what does the law have to say on this? What protection does it offer employees who want to take a grievance further? To help with that, on the line April Horsman:

    April Horsman: "So bullying isn't a free standing legal claim, but where we most often come across bullying allegations would be in the context of harassment claims under the Equality Act or constructive dismissal claims and for both of those claims the fact that an alleged perpetrator's behaviour isn't intended to upset their colleagues doesn't necessarily prevent a claim from succeeding. So example, for a constructive dismissal claim an employee doesn't need to prove that the alleged perpetrator deliberately bullied them in order to establish a breach of the implied term of trust and confidence. Likewise for a harassment claim the test is whether the prohibited conduct had the purpose or the effect of violating someone's dignity or creating an intimidating environment. A tribunal would also take into account whether it's reasonable for the conduct to have that effect. So in both cases employers need to be mindful of the effect that the conduct has on the alleged victim and where we often see issues arise is with management style. So sometimes a robust management style can be seen as bullying and whilst there's nothing unlawful about taking a robust approach it is important that that doesn't cross the line and become inappropriate, and that can be a very fine line. So it's important that employers make it clear what's acceptable behaviour and what's not. So in terms of what we're advising employers to do, firstly they should be making sure that they have an appropriate policy in place. So we'd expect that to make it clear what the standard of behaviour is that's expected from employees. The policy should also make it clear how allegations will be dealt with, and what the potential consequences are. Policies should also cover bullying that takes place remotely - so for example, over social media - as well as that that takes place in the office. Also in terms of prevention, employers should be providing regular training to employees so that they can identify what might amount to bullying and what steps should be taken when that type of behaviour takes place. Then finally, when allegations of bullying are made it is important that employers investigate those allegations properly, and also promptly, and that the manager responsible is considering not only the intention of the conduct, but also the perception of the person who's made the complaint. So it's important that the decision-maker is alive to both of those aspects.”

    April mentioned the importance of training. We do have a pair of e-learning modules on this area - one for employees and one for managers. If you would like further details of either of those please do get in touch with your usual Pinsent Masons adviser. We would be happy to provide you with access to a free demonstration.