KEEP THE BULLIES AT BAY

by

Lee Ashwood It can be just banter to some, but it can be harassment or discrimination to others – and it could cost you as the employer a whole heap of trouble and cash.

Lee Ashwood is an employment law solicitor at law firm Eversheds LLP
Lee Ashwood is an employment law solicitor at law firm Eversheds LLP

Most people would hope and expect that bullying is confined to the playground and not something that we need be concerned with as adults in the workplace. Unfortunately, that is not the case and a recent report by the Advisory, Conciliation and Arbitration Service (ACAS), a government-funded organisation which provides information, advice, training, conciliation and other services for employers and employees to help prevent or resolve workplace problems, has found that workplace bullying may actually be on the rise, with ACAS receiving around 20,000 calls relating to bullying each year, more than ever before.

In recent years, there have been various reports and studies that have been carried out to determine the true extent of workplace bullying. In 2005, the Fair Treatment at Work survey of employees found that 1 in every 25 of those who responded had personally experienced bullying or harassment in the previous two years. By 2008, the number of employees who had personal experience of being bullied or harassed had nearly doubled. Also, in 2008, another survey found that nearly half of all the employees who responded had experienced what they considered to be unreasonable treatment over the previous two years.

HARASSMENT
With employees believing they are being bullied in the workplace, employers should be aware of what ‘bullying’ is. The surveys from recent years have used significantly different definitions and descriptions of bullying (which probably explains why the statistics can vary significantly). Perhaps the most helpful, concise and easiest to understand definition comes from ACAS who say that bullying is ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’. However, what is important to realise is that workplace bullying does happen and it could happen at your workplace.

The impact workplace bullying can have on a business should not be ignored or underestimated. You can be sure that that if bullying is taking place in your business then it will have a negative impact on morale and will result in a lower level of performance and productivity. This, of course, has an impact on your business’ overall performance and it has been reported that that the economy- wide aggregated costs of bullying-related absenteeism, turnover and lost productivity is £13.75 billion per annum.

If an employee has been subject to behaviour that they perceive to be bullying, particularly over an extended period of time, and they do not think they have been supported enough by their employer, they may resign and bring an Employment Tribunal claim for constructive dismissal. Their claim would be founded on their contention that they no longer had trust and confidence in their employer to provide a workplace free of bullying. If the employee succeeds with their claim, their employer who will already have faced the time, cost and inconvenience of defending the claim, may be ordered to pay the employee compensation up to the value of the employee’s annual gross salary (up to a maximum of £78,335).

The employee may also bring an Employment Tribunal claim for discrimination, irrespective of whether or not they have resigned, if they believe that the reason they were subjected to bullying was because of their gender, disability, sexual orientation, age, race or religion. Employers may not even be aware of the prospect of such a claim, as an employee is not under any obligation to use their employer’s grievance procedure before
bringing a claim.

If an employee does bring a Tribunal claim, it can be a particularly difficult situation to manage because, of course, they will still be in work and, therefore, close to the person they have accused. Ultimately, if the Employment Tribunal finds that the bullying was discriminatory, it can order the employer to pay the employee compensation for the injury to their feelings of up to £33,000.

CONFRONTATION
Addressing bullying in the workplace is no easy task but it shouldn’t simply be ignored. Having a well-publicised grievance procedure or dignity at work policy in place certainly helps as it means that employees will know what to do if they think they are being bullied which, in most instances, is to bring it to the attention of their managers. However, that is only the start of the process and will not, in itself, be sufficient to remedy the problem.

Good practice and certainly what ACAS advocate is that the allegations of bullying are investigated thoroughly and impartially to establish what has gone on, that is, who has done what or said what to whom. The investigation should include interviewing the employee who has raised the allegations, the alleged perpetrator and any possible witnesses to the alleged events, which would normally be colleagues. Having done so, the employer should report back to the employee on their findings, what they believed happened. Most importantly, the employer should establish with the employee what is going to be done in the future to ensure that the employee is supported and comfortable at work. This can often involve moving the employee away from the bully or having them both attend a mediation session to ‘clear the air’. Of course, if someone is found to have bullied a colleague, you should consider disciplinary action and training them on the standards of behaviour that are expected of them to ensure it does not happen again.

HIDDEN COSTS

In addition to the obvious costs of increased absenteeism and lost productivity, there are the costs that are not so readily obvious, for example:

  • Increased recruitment costs due to having a higher turnover of employees;
  • Losing experienced employees you have invested time and money in training; and
  • Management time spent investigating and responding to employee complaints.

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