Background
Whilst harassment is normally taken to refer to sexual advances, talk or innuendo, bullying can relate to a whole range of other activities which, unless checked could result in serious injury - and become the liability of the employer (being responsible for what occurs in the workplace). Bullying and harassment, whether it is on racial, sexual, sexual orientation, religion and/or disability grounds, is discrimination. Under the Criminal Justice Act 1994 harassment is a criminal offence punishable by a fine of up to £5,000 and/or imprisonment of up to 6 months, and under the Prevention of Harassment Act 1997 these penalties were considerably increased.

Commentary
The Criminal Justice Act defines bullying as, with intent, causing a person harassment, alarm or distress by using threatening, abusive or insulting words or behaviour, or disorderly behaviour or displaying any writing, sign or other visible representation which is threatening, abusive or insulting. The European Community has advised that employers should adopt a policy on this problem and should take a proactive role in ensuring that it is avoided - or at least minimised.

EU Suggestions

1. Advise staff what constitutes sexual harassment or bullying, and make it clear that it is unacceptable.

2. Provide a complaint process.

3. Ensure managers know it is their responsibility to ensure harassment does not occur.

4. Ensure all employees know both policy and complaint process.

5. Ensure the complaints process is clear and user-friendly (and the confidentiality and anonymity of the complainant is protected).

6. Provide counselling facilities.

7. Investigate all complaints swiftly and fairly.

8. Apply sanctions against those responsible.



Avoidance or Control
Since everyone must be made aware of their responsibilities, employers may need to coach employees to understand what constitutes what can be regarded as offensive and illegal. One company suggests the following tests in deciding whether a particular conduct or wording is potentially sexually harassing:

1. Would you say or do this in front of your parents and/or spouse/ partner?

2. Would you say or do this in front of a colleague of the same sex?

3. Would you like to see a report of this behaviour or words appear in the local newspaper?

4. Does what is being done or said, need to be said or done at all?


Supervisors and managers have an obligation to ensure everyone (including themselves) acts in accordance with the employer's DIGNITY at WORK policy. Thus they need to:

a. Act and react to all employees (and other persons with whom they interface) with respect and dignity.

b. Correct and apply sanctions against any unacceptable behaviour.

c. Know and apply the [organisation] DIGNITY AT WORK policy.

d. Ensure the [organisation] complaint process is known by all.

e. Deal immediately with such complaints, objectively and fairly.

f. Try to appreciate the reactions of the complainant.

g. Encourage concerns to be expressed rather than sublimated.

h. Endeavour to stamp out victimisation and/or retaliation.


Practical Implications
Harassment and bullying at work is thought to resemble an iceberg - only a small proportion is currently visible and complained of, the vast bulk of such problems remaining hidden and unreported. Even if this is so, the actions taken as a result of harassment tend to have a high profile and to attract large sums of compensation.

Case studies
In an out of court settlement the Metropolitan Police paid their employee, Sarah Locker, £32,000 after she successfully complained of harassment, racial discrimination and being passed over for promotion.

Islington Council paid Adenike Johnson £15,000 plus a contribution to her costs, when she had to give up her painting and decorating job because she was subjected to sexual abuse, assault and bullying by fellow employees.


In those cases the compensation was paid by the employer as they were held liable for the acts of their employees. To escape liability employers must ensure that employees abide by the rules. If detailed rules exist, are well policed and administered, and sanctions are applied to those that transgress, and then harassment occurs, the responsibility and liability may be passed to individual employees.

Harassment and bullying offends good employment practice, detracts from efficiency and productivity, and will almost certainly place the victim under STRESS, which can itself be grounds for a liability claim against the employer. The traditional concept of a bully is a strong person whilst the person being bullied is not as strong (either physically or mentally - or both). This, however, is not always the case and is further complicated by the fact that some who are bullied are bullies themselves. Not all bullying is continuous - pressure or stress on a person may make them respond by bullying others - almost as an instinctive reaction. Whilst this kind of spontaneous reaction may be understandable it needs to be guarded against, although long-term and systematic bullying poses a much more difficult problem, particularly when others join the bully and are oppressive to the target. Retail organisations may need to support employees who are bullied by customers or others seeking to exploit the 'harnessed' reaction of those seeking to serve or assist them. Whilst a customer may have a legitimate complaint against the Organisation, those in the direct firing line are hardly likely either to be those who have caused the problem or more importantly those who can actually resolve the complaint. Hence, such staff should be briefed in how to handle irate and angry customers - an immediate apology and apparent intent to assist may defuse many situations but will be insufficient for some. Failure to accept their responsibility in this area will effectively make managements and organisations accessories to those who seek to bully. In two recent cases, both settled out of court, employees won substantial sums from their employers as a result of stress caused by bullying.

Evidence
It can be difficult to obtain evidence of bullying since those suffering may be wary of giving evidence, fearing (unless the instigator is dismissed) that it may make the position worse. If witnesses have such a fear, it is possible to use written statements at a hearing without identifying their source provided the employer has checked as far as possible that the statements are true.

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