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The hash, the tag and the ugly
Print – Issue 164 | Article of the Week

Arwen Makin
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#MeToo gave a voice that echoes like a clarion call to people that thought their abuse was lost in the mists of time. Proof that time is no healer when it comes to the impact of abuse, the ramifications can last a lifetime. There’s momentum and a conversation; among employees, employers, HR teams and the legal profession, where headway needs to be made, and what the real catalysts for change will be.

Article by Arwen Makin, senior solicitor, ESP Law

More dialogue does not necessarily mean that bullying and harassment is more commonplace than in previous years – after all, many claims that have arisen in light of #MeToo are historical, dating back decades. The change is that concerns are being raised more readily and people are standing up for the fact that previously accepted levels of behaviour are inappropriate and will no longer be tolerated. Generally, bullying and harassment is linked to a real or perceived power disparity between two or more individuals. It can manifest itself as a result of multiple factors, including gender, racial tension, disability, or simply personality clashes, to name just a few potential causes. Even Brexit has had a part to play in more recent times. But this power disparity is not new. It has long existed within the workforce. Mutual respect in the workplace is just more accepted as important than it was historically. At this stage it is important to note that bullying is not one-directional, it does not mirror organisational hierarchy and, therefore, does not solely stem from someone in a position of seniority. It can occur within departments, among colleagues with equal roles, and an individual could even be bullied by someone who reports into them. The mistreatment may be verbal or behavioural, and anybody can be subjected to bullying, for any reason.

“Bullying is not one-directional, it does not mirror organisational hierarchy and, doesn’t solely stem from someone in a position of seniority. It can occur within departments, among colleagues with equal roles, and an individual could even be bullied by someone who reports into them”

Very few employers have overlooked the spotlight that is now being shone on the workplace environment, in respect of bullying and harassment. Generally, there have been two distinct reactions. The first has been to adopt a no-nonsense stance to ensure that any mistreatment of colleagues is addressed, investigated properly, and stopped. Other employers in stark contrast, perceive the whole debate as political correctness gone mad. “It didn’t exist in my day” is typically the declaration. Such conflicting attitudes naturally present difficulties for HR professionals tasked with helping to manage this complex landscape – they must support and advise senior leadership teams with differing views, whilst being a trusted aide for employees. The challenge, therefore, is how to do this successfully. The more responsible of organisations will take proactive action surrounding the issue, by adopting a strict, non-condoning stance to bullying. The creation of an open, inclusive culture is imperative here. It is widely acknowledged that no two individuals are the same, and differences may sometimes prevent people from getting on, but respect and tolerance of diversity is certainly essential. Everyone should be encouraged to look out for instances of bullying – the onus should not just be on the individual concerned. Genuine misunderstandings can therefore be addressed before they escalate. However, a sense of transparency and approachability is crucial – as is a clear grievance procedure – if this is to work.

Education is often necessary, for managers and the wider workforce alike. Some media coverage of Brexit started to skew what it seemingly became acceptable to say, for example, so organisations need to be clear on their expectations in this respect – excuses of ‘banter’ simply should not cut it. Whilst the roll-out of educational initiatives may represent an unwanted level of resource investment – especially if organisations are already stretched – the resulting benefits will undoubtedly pay for such schemes many times over. A more accepting workforce is conducive to greater levels of trust, employee engagement, performance and retention. The evolution of technology must also be considered. Apps like Facebook and Snapchat are being increasingly cited within disciplinaries, for example, whether people have innocently acted foolishly towards a colleague, or purposefully exhibited signs of malice. Relevant policies therefore need to clearly state what will and will not be accepted in this respect, both within the workplace and beyond it.

Hopefully a theme is becoming apparent in that the single biggest issue here is not attitude, political unrest, or even ‘banter’. It is poor communication. If an organisation’s stance on bullying and harassment is not plainly and visibly defined, subjectivity surrounding what is acceptable will persist. If colleagues have not been educated or trained in diversity matters, respect for others will never emerge. If a disciplinary matter is not followed up in writing, employees can misremember what was said. Even rushed emails can be misinterpreted. When an instance of bullying or harassment is reported, it is important that HR professionals address the matter constructively, at that moment. Mediation and performance management are just some of the relevant techniques to consider. However, providing the complaint is handled fairly, appropriately and in a timely manner, it should not progress to the point that it requires legislative handling. In fact, employment law rarely comes into play for such grievances, unless there is a claim for constructive dismissal.

Horkulak v Cantor Fitzgerald International [2003] is one of very few cases which demonstrated a constructive dismissal situation. Here, the claimant worked in a high-pressured yet well-remunerated role but was persistently subjected to abusive behaviour from the firm’s president. It was held that this stretched beyond what the employer considered a firm management style, and that the president’s behaviour had created an intolerable working environment which broke down the employment contract. Bullying on the grounds of a protected characteristic could also potentially constitute a discrimination case. In Jurga v Lavendale Montessori Ltd ET/3302379/2012 and ET/3300884/2013, a Polish teacher was successful in her claims for harassment and victimisation. The tribunal had no issue with the school implementing a policy that teachers should only speak English in classrooms. However, one of the claimant’s colleagues objected to the claimant speaking in Polish with other employees during her breaks, so raised a complaint. The claimant then formalised a complaint herself, which was never adequately dealt with. Both the act of the colleague’s complaint, and the failure of the respondent to properly investigate and respond to the claimant’s complaint, were found to create a humiliating or hostile environment relevant to the claimant’s protected characteristic of race.

In Weeks v Newham College of Further Education UKEAT/0630/1 however, the EAT upheld a tribunal’s decision that a female employee had not been subjected to sexual harassment. A colleague had used gender-specific terms in the workplace such as “girlie chat” and “power-dressed women”, and had also circulated an offensive cartoon depicting an elderly woman. However, whilst the cartoon was offensive and unacceptable, and in “any well-regulated organisation” the distributor of that cartoon would be subjected to disciplinary action, the tribunal believed that the acts did not create the environment of harassment that the claimant had complained of. As with any strand of employment law, case-specific details and context are extremely important, and cases of discrimination should absolutely be brought forward. However, on the whole, few solicitors are likely to advocate the use of a court or tribunal as the place to resolve wider bullying grievances that would be better addressed within the workplace.

When considering what is next for this debate, it is important to reflect on the impact that #MeToo has had. A vast issue has been highlighted within the media. Ongoing workplace developments will therefore undoubtedly align with what else comes into the spotlight. Thankfully, the Brexit-fuelled backlash that contributed to criminal cases of race-related abuse, has not transferred over to the workplace. Employers have been warned against the unfair treatment of EU nationals during recruitment drives, but again any such behaviour would likely constitute a discrimination discussion, not a bullying grievance. Sexuality and gender may increasingly crop up in workplace matters moving forwards, particularly because many employers admit their lack of understanding surrounding non-binary identities. But let’s draw upon the positives – getting people talking about topics that currently cause confusion, is crucial. It comes back to communication again. Should employment law do more to ‘police’ workplace bullying? In all honesty, there is probably enough legislation in place already. The Equality Act has revolutionised the protection afforded to people on the grounds of far more varied protected characteristics, and tribunals work hard to settle cases of genuine discrimination. Criminal law also exists to protect people from persistent harassment. But beyond this, there needs to be cultural change within organisations and greater conversation beyond the workplace to shape societal norms. This will help to distinguish what is – and isn’t – acceptable.

esphr.co.uk


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