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Bullying, Discrimination, Harassment and Victimisation at Work.

If you feel you are being treated unfairly at work, it is essential to determine if the treatment or treatments you are being subjected to could be classed as workplace bullying or harassment. 

It is crucial to acknowledge and identify unwanted behaviours in the workplace to ensure you are well-prepared from a legal standpoint. Much of the confusion on bullying or harassment at work stems from the fact that such behaviours can sometimes be disguised as ‘banter’ or downplayed due to their subtle nature.

Bullying

Bullying lacks a precise legal definition, but according to the Advisory, Conciliation and Arbitration Service (ACAS) guide to bullying and harassment, it encompasses any undesirable conduct from an individual or a group that can be offensive, intimidating, malicious, or insulting. Additionally, it includes the misuse or abuse of power that undermines, humiliates, or inflicts physical or emotional harm on someone. These behaviours can manifest as isolated incidents or recurring patterns, taking place both in-person and online, within or outside the workplace. It’s important to note that bullying is not always readily apparent or observed by others.

Examples of bullying in the workplace may encompass various scenarios such as receiving an excessive workload compared to colleagues, experiencing belittlement during meetings, having your authority undermined by a peer or junior colleague, being subjected to the spread of malicious rumours, enduring the use of profanity, being excluded from social interactions, enduring persistent criticism, and encountering barriers that hinder your chances of promotion. 

It is also important to consider that not every action or statement is considered bullying. An example of workplace behaviour that is not considered bullying could be constructive criticism provided by a supervisor or colleague with the intention of helping you improve your skills or performance.

Recently, Dominic Raab resigned as justice secretary and deputy prime minister after an investigation upheld some bullying allegations against him. 

 

When is bullying considered harassment?

According to gov.uk, harassment is when the unwanted behaviour is related to one of the following:

  • age
  • sex
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sexual orientation

The Equality Act of 2010 acknowledges the existence of three distinct forms of harassment. These encompass harassment based on “protected characteristics,” sexual harassment, and unfavourable treatment arising from harassment. 

Within the context of this article, the primary focus will be on sexual harassment. 

What is sexual harassment?

Sexual harassment refers to unwanted behaviour of a sexual nature. Such behaviour can be categorised as creating an environment that is intimidating, hostile, degrading, humiliating, or offensive, or as actions that violate one’s dignity. Anyone, regardless of their sexuality or gender, can both be a victim and a perpetrator of sexual harassment. It can be an isolated incident or repeated. Furthermore, it is the individual who experiences the behaviour who determines whether it is unwanted. This unwanted conduct can take place either in person or online.

Examples of sexual harassment

Examples of sexual harassment include: asking someone about their sex life, discussing your own sex life, displaying or sharing sexual content, flirting, making remarks about someone’s body, clothing or appearance, touching someone against their will. 

Sexual harassment is categorised as a form of sexual violence, alongside other forms such as sexual assault and rape. It is important to note that certain manifestations of sexual harassment inherently violate criminal laws. Examples of such acts include indecent exposure, stalking, ‘upskirting,’ as well as instances of sexual harassment involving physical contact that qualify as sexual assault.

What to do if you’ve experienced sexual harassment

In the event that you choose to pursue a sexual harassment claim, it is crucial to demonstrate that the individual who engaged in the harassing behaviour had the “purpose” of causing offense or that you were indeed offended by the incident, even if such offense was unintended, thus highlighting the “effect” it had on you.

In the case of Miss A Steele v Uniquely Chic Furniture (Cheshire) Ltd and Michael Bennett (2401533/2017), the employment tribunal ruling established that the claimant experienced sexual harassment perpetrated by her superior. The harasser engaged in late-night phone calls where he described his sexual desires. Consequently, damages were awarded to the victim as a remedy for the harm caused.

 

Discrimination

The Equality Act of 2010 serves to safeguard individuals from workplace discrimination. It is unlawful to unfairly treat anyone based on their “protected characteristics”.  These encompass age, disability, gender reassignment, marriage and civil partnership, pregnancy or maternity, race, religion or belief, sex, and sexual orientation.

For the purpose of this article, the focus will be on the protected characteristic of race. 

Race discrimination

Race discrimination can take various forms, including direct discrimination, indirect discrimination, harassment linked to a protected characteristic, and victimisation. 

Direct race discrimination pertains to the unfavourable treatment of an individual based on their race, the race of someone they are associated with, or the perceived race of an individual. An instance of direct race discrimination can be observed when a white employee is selected for a position in a predominantly white organisation, whereas an Indian candidate with similar qualifications is rejected based on the assumption that they may not “fit in”. 

Indirect race discrimination is when a working practice, policy or rule applies to everyone but puts one person or group at a disadvantage because of their race. An example of indirect race discrimination in the workplace could be implementing a grooming policy that prohibits hairstyles traditionally associated with certain racial groups. This policy may inadvertently disadvantage employees from those specific groups, as it creates an unfair barrier that disproportionately affects them based on their race.

In the case of Ms A Cox v NHS Commissioning Board (Operating as NHS England/NHS Improvement): 2415350/2020 and 2401365/2021 it was successfully held that the complainant had faced direct race discrimination by her manager including being excluded from team events. 

Victimisation

Under the Equality Act 2010, Victimisation means ‘suffering a detriment’ because you have done or intended to do a ‘protected act’. Detriment relates to when someone experiences being treated worse than before and/or having their situations made worse. A ‘protected act’ includes making a complaint about discrimination, supporting someone else’s complaint, acting as a witness in a complaint etc. 

In the matter of Mr K Crossland v Chamberlains Security (Cardiff) Ltd: 1600344/2015, the tribunal substantiated the complainant’s claim of victimisation. This ruling was made due to the defendant’s failure to provide any prospective employment to the complainant, based on the anticipation that the complainant might pursue a case of discrimination.

Vicarious Liability

The Equality Act 2010 refers to when an employer could also be held responsible if one of their employees discriminates against someone. This means that if an issue is raised with an employer, they must take reasonable steps to prevent discrimination otherwise they could also be held responsible for the conduct. 

Grievance procedure and Employment Tribunal

Once you have determined the nature of the treatment you have encountered, you may consider pursuing the matter further. The initial course of action is to bring the issue to the attention of your employer. While informal resolution is often possible for many concerns, it is essential to be conscious that formally raised issues become part of the official record and initiate the commencement of a potential legal process.

In the initial stages, it is useful to seek guidance from your union representative, should you be a member of one, or consult ACAS through their free helpline as well as speaking to an adviser from Citizens Advice Bureau. It is important to bear in mind that resorting to an employment tribunal should be considered as a final course of action. Alternate dispute resolutions involve mediation, arbitration and early conciliation. Generally, it is necessary to initiate a claim within a timeframe of three months following the termination of employment or the occurrence of the issue at hand. In cases involving unfair job termination, the three-month period commences from the date of employment termination. However, for claims related to discrimination or pay disputes, the three-month period commences from the occurrence of the incident or dispute itself.

Professional assistance from our Employment Law team

Should you wish to seek legal advice, SMQ legal services offer 20 minutes free consultation. Get in touch with one of our Employment Law solicitors today.