Bullying and Harassment

The term bullying and harassment is often used by employees who suffer from unfair treatment or unwanted conduct aimed towards them by their employer (eg manager or supervisor) or by a colleague. The terms ‘bullying and harassment’ can cover a wide range of behaviour which can be either overt or subtle.  Either way, work can become a very lonely place for an employee that suffers from such treatment. 

Sadly, bullying and harassment occurs far too frequently in the construction and can affect all staff blue collar or white collar, male or female.

This page outlines the obligations that the law places on employers in such situations; the rights of employees and suggested action to take if you are facing such treatment at work.

Quite unbelievably, the law does not expressly protect employees from bullying and harassment generally. The Equality Act, which defines harassment, protects employees from such treatment if it is connected to a protected characteristic.
 
The characteristics protected by the Equality Act are race (colour, nationality, ethnic or national origin); disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; age; religion or religious beliefs; sex and sexual orientation.

What is ‘harassment’

The Equality Act 2010 defines ‘harassment’ in the following way:

Where ‘A’ harasses ‘B’ in relation to a protected characteristic where the conduct has the purpose or effect of violating ‘B’s dignity or creating a hostile, degrading, humiliating or offensive environment for ‘B’.

Although bullying and harassment are often terms that are used together or interchangeably, the Equality Act only defines ‘harassment’.  Therefore, if the behaviour complained of does not fall under the definition above, it will not be protected by the Equality Act.

The employee does not necessarily need to have one of the protected characteristic themselves.  Therefore, if they are victim to unwanted conduct in relation to one of the protected characteristics in the list above because they are wrongly perceived to have one of the characteristic or are connected to someone who does, they might be protected by the Equality Act in relation to that behaviour.

Example 1 – John is heterosexual and the team that he works with know that. However, they tease him about his sexuality and make derogatory homophobic statements directed at him. The conduct is unwanted and connected to sexual orientation. Although John does not share the protected characteristic, he is protected from harassment connected to it. 

Example 2 – May works in an office with a colleague who is disabled. Her colleague is constantly humiliated by a supervisor about his disability. May is a witness to this behaviour on a daily basis which she finds uncomfortable and offensive. The conduct is connected to a protected characteristic (disability), is unwanted and creates a hostile and offensive environment for May.  She is protected by the Equality Act and could bring a claim in harassment.

What action can an employee take?

Evidence

It is advisable for the employee to keep a diary of all incidents (including what was said and by whom, witnesses to the conduct, dates and time etc).  his is particularly important where the conduct is not overt but more subtle. It might be easier to establish the harassment by proving a pattern of behaviour. Also, any evidence that the behaviour towards the employee is connected to a protected characteristic would be very useful, for example if the employee can show examples of other employees who do not have a connection to the protected characteristic not being subjected to the same conduct.

Informal action

Sometimes, the perpetrator may not realise the effect of his or her behaviour and confronting them may resolve the matter quickly.

Understandably, taking any action can sometimes feel daunting and many employees can feel reluctant to make a complaint. However, it is important to try to discuss the matter with someone who the employee feels comfortable with. This could be a manager, HR, or union representative.  It may be that the matter can be dealt with on an informal basis.

Grievance

If the conduct is serious or an attempt at dealing with the behaviour on an informal basis has not worked, it may be advisable for the employee to submit a formal grievance against the person/s guilty of the conduct.

It is often a good idea before tabling a formal grievance for harassment to seek advice and support from a UCATT official or shop steward.

Legal action

If an employee suffers from harassment that fits the description above, he or she may have a claim under the Equality Act in relation to harassment (any potentially other forms of discrimination).

There are very strict time limits to pursue a claim at Tribunal which must be adhered to if an employee wishes to potentially pursue a legal claim.

An employee has 3 months less one day from the date of the act of harassment (or act of discrimination if there are other types of claim) to bring a claim. 

Where there is a series of acts, the time limit might be ongoing. However, it is safest to obtain legal advice as soon after any act of discrimination to ensure that a claim is brought within the legal time frame.

It is now a prerequisite to notify ACAS of an intention to bring a claim at Tribunal first.  This must be done within the above time frame and the Tribunal deadline will then be extended by the period of conciliation. 

Quite often, the internal grievance process will not have been completed within 3 months. However, it is vital to notify ACAS of the intention to bring a claim and lodge the claim with the Tribunal within the time limit in any event as the internal grievance process does not extend the deadline for bringing a claim. 

Sometimes there will be two claims with two different time limits to be brought. It is important to think about what the complaint is and the date on which it occurred.

Example – on 26th February, Maria’s colleague, Michael, made a racist comment towards her and laughed about her ‘broken English’. Maria made a complaint to her manager who told her that he would speak to Michael.  The behaviour did not cease and Maria later found out that another colleague had overheard her manager on 17th March ‘warn’ Michael that Maria had been making complaints about him. Maria then brought a grievance against Michael and her manager which was ignored by the management.

There is no ‘series of acts’ as the acts have all been made by different members of staff. Each ‘act’ of harassment (and other forms of discrimination) have their own time limits.  Therefore, to be safe, Maria should lodge her notification with ACAS of her intention to bring a claim on or before 25th May (three months less one day from the date of the first act of harassment and discrimination).

Constructive Unfair Dismissal

Employees may have another legal avenue under constructive unfair dismissal rules if the bullying and harassment is serious enough to be defined as a fundamental breach of trust and confidence.  This does not necessarily have to be connected to a protected characteristic. . 

Employees should note that constructive unfair dismissal claims are notoriously difficult to pursue and usually, an employee needs to have at least 24 months’ continuous employment service with an employer to be able to bring such a claim.  It is therefore vital to seek legal advice or advice from UCATT prior to resignation.

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