Briefing: What rights does an employee have if accused of bullying?
Bullying is not, unfortunately, something that ends at the school gates. It can carry on well into adult life. Since you have a duty of care for the health, safety and wellbeing of all your employees, and this duty extends to mental as well as physical health, you need to be vigilant for any signs of bullying happening in the workplace.
But, says Phil Coates in this briefing, it’s important to remember that the duty of applies to all employees, including the person who’s been accused of bullying.
What is bullying?
There are variety of definitions for bullying and harassment at work. The Equality Act 2010 defines harassment as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
However, bullying can have a wider definition and is characterised by ACAS as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.
When considering the duty of care, it’s important to remember that this applies to all employees, including the person who’s been accused of bullying. Leaping to an assumption of guilt before any evidence has been heard, or circumventing the proper processes of the disciplinary procedure can rebound on the hasty employer, who may – for all the best intentions – be concerned about the effect on their reputation and staff morale if bullying is left unaddressed. A person who has been accused of bullying will face difficulties because of those allegations – their own mental and physical wellbeing may suffer during the investigative process and their reputation and career may be affected, with colleagues assuming ‘no smoke without fire’ and drawing erroneous inferences.
Indeed, you may find that errors in handling such a matter could leave you open to claims from the accused employee of breach of contract, discrimination (if there is a protected characteristic which they have) or unfair dismissal.
So, what steps should you take if you find yourself in this position?
- Check with the internal bullying and harassment, grievance and disciplinary procedures to ensure that they are being complied with at all stages of the matter.
- Sometimes, a situation such as this can be resolved without having to resort to formal processes. A private discussion between the relevant parties and HR may be able to clarify the gap between intention and perception and maybe resolve the issue.
- If this isn’t possible, then you will have to move to the formal investigation process. It’s important to remember that the investigation needs to be fair and reasonable – there are specific recommendations in the ACAS Code of Practice on disciplinary and grievance procedures that are the minimum a workplace must follow, and include dealing with issues promptly, avoiding unreasonable delay and allowing the employee a right of appeal against any decision made. Indeed, if a disciplinary or grievance case reaches an Employment Tribunal, the judge will look at whether you’ve followed the Code of Practice in a fair way; not having done so could affect your chances of success.
- It also goes without saying that confidentiality should be maintained throughout the process and the number of people involved should be kept to a minimum to avoid information leakage and negative effects on all concerned.
- It is important to let the accused employee know that the matter will be dealt with impartially on both sides, and stress that no conclusions will be reached till the investigative process is over. If they’re not familiar with your policy on the process, ensure they have a copy to refer to.
- While the investigation process is going on, you need to think about how the workplace will be managed, especially if both the accuser and the accused are in proximity to each other. No precipitate action should be taken; suspension or transfer might be taken as an indication that the outcome of the investigation has already been decided. Rather, you should think about whether any action is reasonable, appropriate and necessary, judging the case on its own circumstances.
- Recording the process of considering the action to be taken will stand you in good stead if it can be shown that other courses of action were looked at before suspension or transfer were decided upon.
- Of course, if either side actually volunteers such a solution, then it should be considered as a viable option.
Support
Regardless of how well things are handled, being part of a disciplinary process can be an isolating and stressful time for an accused employee, so they should be provided with any available support during this time. That could be confidential helplines, counselling or employee assistance programmes.
Proportionate and appropriate
If it turns out that the allegation of bullying is substantiated, you should look at any mitigating circumstances and make sure that the action taken against the perpetrator is proportionate and appropriate. Failing to do so may count against you if a tribunal claim is raised.
Phil Coates, rradar
www.rradar.com
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