Workplace bullying and working from home

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As schools prepare for this year’s Anti-Bullying Week, which runs from 16-20 November 2020, businesses may wish to consider if bullying related issues are present in their workforce.

There is no legal definition for bullying, but it’s described by ACAS as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’. As well as the more obvious example of being humiliated in front of colleagues through verbal abuse, bullying could include blocking promotion, malicious rumours, or sharing criticism where others do not need to know.

New working practices resulting from the COVID-19 lockdown have expanded the virtual working landscape. This presents bullying and harassment challenges to employers which they may be less familiar with monitoring.

Homeworking may lead to more workers falling victim of bullying, where the pressures of working online and interacting through virtual spaces results in micro-aggression and cyber-bullying. Cyber-bullying may manifest itself as repeated check-ins and chasers from managers, and instances are perhaps more likely to arise when there is a lack of trust that staff are maximising output in an independent working situation, or where poor working relationships are subjected to additional strain and lack of communication away from the office. There is also the increased potential for workers to feel isolated and for the actions of colleagues to be more easily misinterpreted.

In turn, employees who had already experienced bullying and harassment in the office may find that working from home has even exacerbated the issue, with their colleagues less likely to observe or report what is happening.

Figures from the TUC indicate that around a third of people are bullied at work, with women more likely to be at risk. Around three-quarters of cases involve bullying by a manager, making specialist training and development an important tool in tackling the issue. This is echoed in further research undertaken recently by CIPD, which found that of those workers who had been bullied or harassed at work, 40% stated that their manager was responsible.

So, what does employment law have to say about this?

In the UK, the Equality Act 2010 prohibits harassment that is related to a protected characteristic, such as a person’s age, sex, religion or belief, disability, race, sexual orientation, or gender reassignment. Such harassment entails unwanted conduct related to a protected characteristic with the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the person. For example, offensive comments about someone’s race, disability or sexual orientation.

Sexual harassment is also prohibited. This involves unwanted conduct of a sexual nature with the purpose or effect described above. Additionally, the recipient of such conduct, or alternatively the recipient of unwanted conduct related to gender reassignment or sex with the purpose or effect described above, also experiences harassment if they suffer less favourable treatment as a result of rejecting or submitting to the unwanted conduct.

If an employee subjects a colleague to such behaviour in the course of their employment, the behaviour is treated as having also been done by the employer. The employer does not have to know or approve of the harassment to be liable for it. However, an employer may have a defence if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act or anything of that description. Harassment claims can be very costly, from both a financial and reputational perspective.

Persistent harassment may lead to poor work performance and attendance by those affected. CIPD research also showed that many who had suffered bullying at work did not report incidents due to fears over how it would be handled, or whether it may weigh against them in their career development, particularly where a manager was involved. Thus, the root causes of bullying, such as racism or homophobia, may never be acknowledged.

Of those who do report incidents of bullying, one in three leave their job as a result of the situation. When bullying leads someone to resign from their job, they may also have a case for breach of contract or constructive dismissal. Meanwhile, businesses incur recruitment and development costs to replace the skills lost.

The impact of the pandemic and the subsequent shift towards working from home is proving to be a real stress-test for the culture of businesses and the strength of HR policies already in place. Regardless of the challenges this presents, everyone should be entitled to work in a safe environment, free from bullying and harassment.

The Equality and Human Rights Commission recommend that every business has a written policy, setting out how harassment at work is unlawful and ensuring that all staff understand that such behaviour will not be tolerated and may be treated as a disciplinary offence. Giving specific examples of what constitutes unacceptable behaviour in different situations is useful in helping people understand boundaries, together with guidance to staff on how to respond and deal with such behaviour. Crucially, businesses should have clear procedures in place for reporting and handling any complaints. Such measures can help retain staff and avoid future litigation.

The current situation presents an opportunity for employers to review and adapt policies, consult with staff, and involve managers in establishing the required boundaries and support to ensure the safeguarding and welfare of their workforce.

For assistance, please contact a member of the team.