Direction of travel as regards bullying and harassment

There’s been a lot of attention lately in relation to harassment training but we are concerned at how few employers have asked us about this recently. Employers need to ensure anyone in work, feeling that they are, for example, being sexually harassed, feel confident that their organisation will take it seriously when they raise complaints in relation to such an issue. I’ve definitely seen cases where employees who may not have come forward in the past have started to do so, leaving employers with some difficult issues to handle.

Whilst the focus has been on this, the wider concept of bullying has had less attention, but some recent European cases have brought it back into sharp focus.

The first case related to the employee being humiliated by scornful language, threats, insults and swearing on a repeated basis that was clearly intentional behaviour towards the employee. The court regarded this as a systemic part of how the organisation worked. The particular financial institution involved sought to argue that the work environment was an inherently stressful atmosphere, in some way implying that kind of conduct between staff was acceptable.

Just like we can’t say that acts of harassment are “banter”, employers are simply not going to get away with arguing that the workplace culture justifies treating employees in a manner that is unacceptable, so unsurprisingly the employer failed.

There are cases where the courts have upheld that swearing at an employee is unacceptable behaviour in the workplace.

All employers should, therefore, be thinking about the sorts of behaviours that go on in their workplace and tackling those that don’t display appropriate behaviours to avoid the sorts of complaints involved in these cases.

There is a lot of discussion around the extent to which confidentiality clauses should be available to employers to ‘gag’ those who’ve made complaints, and potentially brush issues under the carpet.

The second case also involved bullying where the employee had been paid off with a confidentiality requirement. The General Court of the European Union held that it was wrong to impose a confidentially requirement as the public interest required such findings of harassment in the workplace to be open. The Employment Lawyers Association has consulted with its members around this recently and Parliament is looking at it, so it is entirely possible that there may be legalisation in the future to limit the extent to which employers can impose confidentiality and even if that doesn’t happen, employers need to think quite carefully about the effects of brushing cases under the carpet without learning the lessons about patterns, and changing the behaviours or exiting those who are the protagonists.

The case of Rhian Collins a mental health nurse who committed suicide recently here in Wales following sustained bullying in work, is a salutary reminder of how seriously we need to take this issue and that employers cannot afford not to be proactive when it comes to bullying cases.