Ben Stepney explains how to act when a member of your team makes an allegation of bullying by a colleague.
There is no legal definition of bullying. Acas (Advisory, Conciliation and Arbitration Service) defines bullying as “unwanted behaviour from a person or group that has the effect of making an employee feel frightened, upset, less respected than others or that they are being made fun of”. Examples include rumour spreading, being blocked from attending social or networking events, being talked down to and being given heavier workloads than others.
Bullying can often become harassment. Harassment occurs where the conduct has the purpose or effect of:
- violating the victim’s dignity; or
- creating an intimidating, hostile, degrading, offensive or humiliating environment for the individual.
To be protected under discrimination laws, an employee must show that the harassment is related to a protected characteristic (race, religion or belief, age, sex, sexual orientation, gender reassignment and disability). Examples of harassment include sexual harassment, continuous aggression and intimidating comments.
What are the steps I need to take to deal with bullying appropriately?
Employers have a duty of care to look after the wellbeing of employees. Being alert to noticing issues when they first appear will help to mitigate harm. These issues can include rejecting invitations to socialise, asking to work from home, taking regular sick leave, producing a lower quality of work and seeming distracted and anxious at work.
The first step is to take complaints of bullying seriously, acting in an open, confidential and non-judgemental way to show you care and are willing to listen. This may prevent an employee taking their claim further (e.g. formal grievance or litigation).
Talk to the individual making the allegation and ask how they would like to handle the complaint. Would they like to remain discreet or do they wish to take it a formal route? You then know the best route to start off, making sure you utilise the company’s grievance and complaints handling process where applicable.
- Informal handling = mediation (in-house or third party), simply talking to both parties in confidence can sometimes remedy the issue, meeting with all parties (similar to mediation but more informal).
- Formal handling = investigation, further action (e.g. relocation or disciplinary action).
Offer counselling to both parties if needed. Behavioural counselling may be appropriate for the perpetrator where their behaviour is a serious concern; it may help to show to the victim and other employees that you are trying to prevent this from happening again.
If the company does not have a grievance process, this should be created as a priority so employees know where to go if they have concerns.
What information do I need from the employee?
“The first step is to take complaints of bullying seriously, acting in an open, confidential and non-judgemental way to show you care and are willing to listen.”
Employees need to feel comfortable, you should not push them to disclose sensitive information if they are not comfortable doing so; instead they should be reassured that everything they say is confidential and judgment free. You will need to ask who the complaint is regarding and what the complaint consists of. If the employee is able to provide details such as a time and place and exact words or actions this would be beneficial for any potential investigation.
Ask the employee how they feel about the events and how they would like to handle the issue – some might like a formal apology whereas some require more serious outcomes to feel comfortable: this will vary person to person and will help to guide you.
What do I need to take into consideration when approaching the alleged bully with the accusations?
The most important thing is to be open-minded and non-judgemental; there are two sides to every story and the alleged bully may have a different recollection of events or explanations for their actions.
Consider confidentiality, in some cases it may be inappropriate and dangerous to name the individual who has raised the accusations. Simply stating “it has been brought to my attention that you have allegedly…” may be the best way to address the situation initially.
It is important to follow up any meeting with a letter detailing what was said and what the next steps are, this way you are transparent about what is happening.
How do I decide what subsequent action to take?
Initially it depends on how the individual making the accusations reacts and what they would like to do. It is down to the judgment of the company to decide how serious the accusation is (is it a one-off issue or is it ongoing, have other people come forward, how seriously has it affected the individual bringing the claim?).
- If very serious, stronger and more formal action is likely for example an investigation, meetings, disciplinary action.
- If less serious or the individual alleging the behaviour does not want serious outcomes could mean a meeting, conversation with the accused, apology or mediation.
How do I protect the company from later legal claims?
All disciplinary procedures need to be appropriately handled. If there is a disciplinary hearing following an investigation, the employee should be made aware of the hearing with enough time to prepare their case and should be given the opportunity to be accompanied. Meeting notes should be made and a letter with the outcome should be sent to the employee. Handling the hearing correctly will limit the risk of any claim being brought by the employee.
Other steps to mitigate future claims from others include:
- Developing a culture of respect and tolerance;
- Creating a zero tolerance for any inappropriate behaviour and demonstrating this;
- Developing anti-bullying and harassment policies and grievance procedures;
- Drawing employee attention to any policies;
- Emailing policies and information to employees before off-site events;
- Providing equality and diversity training; and
- Whistleblowing policies.
Ben Stepney is an employment lawyer at Thomson Snell & Passmore.
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