07 April 2010

Dealing with bullying


Melissa Paz
Associate | UK

The Problem

Claims that Gordon Brown bullied his staff have sparked discussions about bullying in the workplace. It is believed that this costs UK businesses billions of pounds each year, leading to sickness absence and increased turnover of staff. In the hospitality industry, a culture of bullying has been a longstanding problem. Now, according to recent reports, the recession has led to a rise in such behaviour, caused by increased pressure at work and longer working hours.

So, how should employers tackle this difficult issue?

The Law

There is currently no legislation dealing with bullying itself. However, employees may be able to bring a claim in the employment tribunal using discrimination legislation and, in particular, provisions relating to harassment (defined as ‘unwanted conduct’ that ‘has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment’). In serious cases, an employee may be able to bring a harassment claim in the civil courts.
There is also an implied mutual duty of trust and confidence in employment relationships. If an employer fails to protect its employee from bullying, it may be in breach of this implied duty. If so, the employee would have the option of resigning (with or without notice) and claiming ‘constructive dismissal’, which could lead to an unfair dismissal claim.

Further, under the Health and Safety at Work Act 1974, employers have a duty to provide their staff with a safe place and system of work, which includes ensuring that employees do not suffer stress-related illness caused by bullying. Failure to comply with this duty may result in the HSE issuing an improvement notice and, in some cases, a personal injury claim.

Expert Advice

Prevention is better than cure. Employers should send a clear message that bullying will not be tolerated and ensure that an effective policy is in place, which outlines examples of unacceptable behaviour (including those areas covered by discrimination law), and sets out a complaints procedure.
A policy is of little value unless it is acted upon in practice. Management plays a critical role here. Employers should identify a manager who is in charge of implementing the policy, and arrange regular training sessions for all managers about this.

It is often difficult to re-establish good relationships once formal complaint procedures have commenced, so it is worth encouraging employees (in the policy and in practice) to attempt to resolve problems informally in the first instance.

If a complaint of bullying is made, it should be investigated thoroughly. Employers should ensure that the person carrying out any investigation is experienced and impartial, particularly as failure to do so could cause more distress to – and potentially further complaints from – the affected employee. Complaints should be dealt with swiftly, sensitively and, so far as possible, confidentially, using the procedures set out in the employer’s policy.

If bullying is found to have taken place, disciplinary action against the perpetrator may be necessary. The best course of action may be to arrange counselling and / or training, but written warnings, or (in serious cases) summary dismissal, may be appropriate. Both the complainant and alleged harasser are entitled to expect a complaint to be handled appropriately, and consistency is a key element of this.

Checklist

Employers must:

  • have an anti-bullying policy, including a complaints procedure;
  • advertise the policy to the workforce (including during any induction process);
  • identify who is in charge of implementing the policy and ensure that management is fully committed to it; 
  •  review the policy periodically to see whether it can be improved; and
  • handle complaints confidentially and consistently in accordance with the anti-bullying policy.

Beware!

In certain circumstances, a worker may bring a harassment claim in respect of the behaviour of third parties (such as guests), as well as in respect of the behaviour of other members of staff. Employers should take reasonable steps to avoid this.

_This article was first published in Caterer and Hotelkeeper magazine
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Category: Article