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BUSINESSMATTERS MARK STEVENS is a Senior Associate at VWV LLP
Workplace bulling is a serious issue and allegations of bullying can have consequences for employers and employees alike, writes Mark Stevens. The term bullying is often used interchangeably with harassment. However, the Equality Act 2010 gives harassment a very specific meaning ’unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’. Bullying is not specifically defined in UK law, but ACAS says that bullying ’may be characterised as: Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’. Harassment related to a protected characteristic under the Act (age, disability, gender reassignment, sex, pregnancy and maternity, race, religion or belief, marriage or civil partnership, or sexual orientation) is unlawful. Harassment which is entirely unrelated to a protected characteristic isn’t covered by the Act but is still something that an employer ought to be concerned about. Individuals are protected from harassment throughout their working relationship and beyond. Consequences for employers Employers can be liable for harassment between individual employees. They can also be liable for harassment which employees have faced from a third party where it occurs
10 | APRIL 2022
Photo courtesy Pexels, Anna Nekrashevich
BULLYING AT WORK
in a work context or at a work-related event. Employers can be liable for the actions of those working for them if they harass others, and the consequences of this are costly both in terms of expense and reputation. In the context of a workplace discrimination claim, Employment Tribunals can make uncapped compensation orders (including for injury to feelings); they can also make recommendations to employers to counter the adverse effect on the claimant – failure by the employer to comply with this can result in increased compensation. Another point of concern for employers is that Employment Tribunal decisions are published on gov.uk; dealing with a harassment claim can therefore damage an organisation’s reputation. Dealing with complaints If a complaint is made it should be dealt with promptly. It may be that, initially, it can be resolved informally. However, it is important that employers have formal procedures in place. A policy should cover all types of grievances and disciplinary issues, including bullying and harassment. It
is also important to provide workers with alternative points of contact in case the named contact is the alleged harasser. Employers can use an independent third party to help resolve workplace conflict; this might take the form of mediation. This won’t always be appropriate. But should the informal option fail, or the situation is considered too serious for the informal route, then the employer will need to trigger its formal procedure. This ought to include an investigation which must be commenced in good time after the complaint is raised. It is important that the investigation is impartial; this means employers should consider any conflicts of interest before assigning investigation roles. Investigators should ensure they take evidence from witnesses, listen to both the alleged harasser and the complainant’s version of events, and ensure confidentiality. It is important that employers make a record of complaints and investigations. These should be sufficiently detailed and include the names of the people involved, dates, the nature and frequency of incidents, action taken,
follow-up and monitoring information. These records should be made as soon as possible following the receipt of the complaint. If a complaint is upheld, it might be appropriate to relocate or transfer one of the individuals involved. At the same time, it is sensible to seek legal advice if employers wish to put in place a confidentiality or non-disclosure agreement. Steps employers can take Employers should have a clear and thorough policy that states their commitment to promoting dignity and respect at work. Employers should be aware that their responsibilities also extend to work-related activities, such as parties or external events, remembering that they could be liable for what happens at these occasions unless they took reasonable steps to prevent trouble arising. Following the rise of hybrid working, the line between work and home has become increasingly blurred. Employers should therefore be aware of the risks of ‘cyber bullying’. A picture uploaded to an external website, for instance, of a colleague could amount to bullying for which the employer could be vicariously liable.
Employers should be clear that there is zero tolerance for any type of inappropriate, aggressive, or intimidating behaviour. During the induction process employees should be told about the organisation’s expectations. Employees need to undergo onboarding training on the relevant policies and be provided with information concerning their rights and personal responsibilities. As to its contents, it should stress that each employee is responsible for their behaviour while giving practical examples of what constitutes harassment and bullying to set expectations. The policy should clarify that harassment and bullying will not be tolerated and make clear that allegations of harassment and bullying may be dealt with under the disciplinary policy and could potentially amount to gross misconduct. The policy should clarify the legal implications of bullying and harassment - which might include consequences for the individual. It should also describe how, if someone is feeling bullied or harassed, they can get help and make a complaint, whether formally and/or informally and what the relevant process is. Finally, the policy needs to clarify the accountability of all managers and require managers to implement the policy and ensure that it is understood by all employees and workers. In summary Workplace bullying and harassment can have significant consequences - both for employees and their employer who may find itself defending a claim that it did not do enough to stop the bullying behaviour from taking place.
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