General banter is part and parcel of the workplace and can sometimes help to create a more relaxed environment.  However, there is a thin line to tread before it might be perceived to be a form of bullying or harassment by some. Certain forms of harassment at work will amount to unlawful discrimination. Harassment will amount to discrimination if it relates to a “relevant protected characteristic”. Specifically, harassment is unlawful if it relates to sex, gender reassignment, race, disability, age, sexual orientation and religion or belief.

Banter linked to sex, race, religion, sexual orientation or age is the most common form of harassment in employment.

Legally speaking

There are a number of practical and legal reasons why employers should take proactive steps to deal with bullying and harassment in the workplace. There is an implied term in every contract of employment that the employer will provide a working environment that is reasonably suitable for the performance by an employee of his or her contractual duties. Bullying can create a hostile working environment, which may breach this implied term.

The Equality Act states that a person harasses another if he or she engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating that other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

It also states that when deciding whether or not conduct has this effect, the perception of that other person, the other circumstances of the case, and whether or not it is reasonable for the conduct to have that effect must all be taken into account.

There is also a common law duty to provide a safe system of work and in certain circumstances this can extend to liability for psychiatric illness if it is reasonably foreseeable.

Guarding against offensive jokes, banter and remarks

Employers need to ensure that they properly brief all their employees as to the types of conduct and speech that might cause offence to others and make it clear that such behaviour will be unacceptable. Any jokes, remarks or banter that might cause offence to another employee on any grounds should not be permitted.

Employees should treat their colleagues with dignity and respect and refrain from any behaviour that might cause offence.  They should be encouraged to realise that their colleagues will have differing views and feelings and differing levels of sensitivity about certain matters – nobody can ever know everything about his or her colleagues.

Nip it in the bud

In cases of bullying and harassment that are covered by statute, an employer has a statutory defence if they can prove that they took all reasonable steps to prevent the bully or harasser from doing that act or acts of that description.

For an employer to rely on this defence, they must show that they did everything reasonably practicable to stop acts of bullying and harassment from happening.

The most obvious step is for the employer to issue a policy on bullying and harassment in the workplace. This should outline the sorts of actions that are regarded as bullying and harassment and should spell out the consequences of these actions. It should give employees a person to contact and a route to follow if they believe that they are being bullied or harassed at work.

It may be beneficial to also conduct an informal review of the “culture” in the company to establish if, for example, sexist, racist or homophobic banter is commonplace. Nowadays such banter is unacceptable in any industry sector and it will be much better to take preventative measures in an informal way, perhaps through team meetings, than to allow the behaviour to continue, thus creating a serious risk that it will cause offence to someone and lead to formal complaints and tribunal claims.

If an employee comes forward to report an incident of bullying or harassment, it is vital for the employer to take the complaint seriously and tackle the matter promptly. Dealing with such matters is never easy, but any delay in resolving the complaint will make matters worse.

In summary, if an employer sees or hears anything that indicates that an employee may be experiencing bullying or harassment at the hands of a colleague, they should intervene as soon as possible and take the necessary steps to put a stop to any behaviour that is liable to cause offence or distress.  Nipping a potential problem in the bud is much better than doing nothing and thus creating the risk that the situation may escalate into a formal complaint.

Summary

Employers should:

• Be aware that there are a number of practical and legal reasons why they should take proactive steps to deal with bullying and harassment in the workplace.
• Familiarise themselves with the statutory definitions of harassment.
• Be aware of the reasonable steps of defence.
• Ensure there is a bullying and harassment policy in place.
• Ensure that the policy is well communicated throughout the workplace.
• Follow the company disciplinary procedure if it appears that bullying or harassment may have taken place.
• Be consistent in the way that complaints of bullying or harassment are handled.

Not sure what this might mean to you?  If you would like to include or update a bullying and harassment policy in your Handbook and/or specific clauses in your Contracts of Employment, please contact us on 01582 883299.

Helen Skepper – Research and Communications Advisor
Su Allen HR