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
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
