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Banter, bullying,and harassment-understanding and dealing with these issues in the workplace.

10th November 2017

Recent weeks have seen a lot of attention given to allegations of harassment and bullying, often with an apparent sexual motivation, by celebrities, and politicians. Sadly, harassment and bullying, sexually motivated or otherwise, happens in the workplace every day to normal, ordinary people too. It is rather sad that a topic as serious as this- which is the subject of hearings in the Employment Tribunals up and down the land most days- rarely becomes the topic of discussion and reflection unless and until it involves some “celebrity” or other, or a politician.

The challenge for commentators and advisers is to deal with the subjects of harassment and bullying in a logical and objective manner, rather than in some knee-jerk or irrational fashion.

Obviously, everyone should expect to be treated with respect and dignity at work, and should not be subjected to harassment or bullying, be that motivated by sex, race, age, or any other factor. Yes, it is true that the equality legislation (ie the Equality Act 2010) recognises certain defined “protected characteristics”, including for example, gender, race, disability and age. But, the fact that employers should not look at the issue of “legal protection” from harassment, or the seriousness of behaviour, by reference only to the characteristics that are protected under the equality legislation is illustrated in the frequent litigation in the Employment Tribunals in which former employees bring claims of constructive unfair dismissal arising from some other forms of bullying or harassment. Clearly bullying and harassment in the workplace needs to be treated seriously and stopped whether or not there is a sexual motive involved.

It is clear that a major problem for employers in dealing with incidents or allegations of harassment and bullying is the spectrum of views on any particular type of behaviour, and the fact that one person may regard certain words or behaviour as acceptable, whereas a different person would regard the same words or behaviour as unacceptable. To add to that, it is also true that the general views within society as a whole of what sort of comments or behaviour is acceptable change over time. Many of us look back at television programmes and news items from the 1970s and even 1980s with a certain amount of disbelief and astonishment at the comments and behaviours that were regarded, or at least treated, as being acceptable or even funny then, which would now be regarded as amounting to harassment, discrimination, or simply as offensive. It is in this ever- changing sense of the “norm” and views on “unacceptable” conduct that employers need to understand and deal with allegations of harassment, and bullying, in the workplace. 

Some level of relaxed conversation, and jokes in the workplace is always to be expected, and is helpful in developing effective and friendly working relationships between colleagues. However, it is also true that sometimes a person’s “banter” may go too far for a colleague, and some comments can be made between colleagues that are in fact cruel, belittling or insulting. We have all come across that person in the workplace that makes cruel or hurtful comments about another colleague, who then tries to pass it off as “just banter” or claiming that it was said “tongue on cheek” or indulges in behaviour that they claim was a “practical joke” or that they were just “winding up” their colleague. Usually some guidance for that person is enough to stop their poor (or poorly judged) behaviour.

Employers should have written policies dealing with issues such as harassment (not just on those areas expressly covered by the equality legislation), and bullying. All staff should be made aware of those policies, and receive some level of training on the use of those policies. In particular, managers should receive regular training on such policies. Training must of course be more than simply providing a copy of the policy and telling them to go and read it!             

Staff should receive training in understanding and identifying behaviour and comments that are unacceptable. Proper training is essential. It is important to note that training should not be seen as a tedious or as a boring necessity, or just as a one-off event. Training should help your staff understand what sort of comments and behaviour is and is not acceptable, and what is offensive to others (even if not necessarily offensive to them). It is sensible to hold meetings with staff, individually and as teams to enquire if anyone has been having any problem or anxieties in their working relationships. By addressing these things promptly employers should be able to take steps to restore working relationships before they break completely and sour the whole working atmosphere for all members of staff. Employers and, more fundamentally, their managers, need to deal with any complaint of harassment, bullying or discrimination seriously and promptly.

We often see problems for employers dealing with allegations of bullying or harassment when managers have certain “favourites” among their colleagues, and so treat some better than others. This sort of behaviour can be especially problematic if a “favourite” colleague becomes the subject of an allegation of harassment or bullying. In those cases, it is essential that an employer treats the accused employee no differently from anyone else that has or would be treated if a similar allegation were made against them. The degree of seriousness attached to any investigation should depend on the seriousness of the allegation itself and not the identity of the person that has either made the allegation or the person that is the subject of the allegation.    

Managers should be encouraged to adopt an open and transparent approach towards their staff with regard to be ability to raise any concerns or complaints with them without fear of ridicule, or of receiving a dismissive response. Adopting an informal approach in the first instance will often provide the best resolution for the staff concerned, but a formal process should be followed if an initial informal approach has failed to conclude the matter, or in any event in dealing with the most serious of allegations. Having said that, we often hear people say that they had “no choice” but to deal with a particular allegation under a very formal approach from the outset. Put bluntly that is rubbish- there is always a choice to be made. The skill is in making the right choice. For some employees an informal approach is all that is needed, and will result in a remedying of the problems, for others a formal approach is required.

While managers should use policies and procedures properly they should not seek to hide behind them when they need to make a managerial decision in handling an allegation. Managers need to be able to engage with both the accuser and the accused honestly and fairly in dealing with these issues rather than adopt a rigid (and sometimes intimidating) procedure prematurely. The recent sad death of the member of the Welsh Assembly that had been accused of inappropriate behaviour should make that lesson clear, as his family have asserted that it was the process followed that pushed him to suicide rather than the allegations alone.      

In any event, this case clearly highlights the need for employers not only to have written procedures on this issue, but also and to exercise them in a proportionate, even-handed, and fair manner.  

We can help by providing you with appropriate policies to address these issues, and give advice on implementing them properly and appropriately. 

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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