Bullying and harassment are terms that are often lumped together. They are often the same thing, but they are legally separate in terms of what claims may be brought against your employer.

What is Bullying at Work?

Bullying is a general term used throughout the world that characterises one person’s poor treatment of another, often based on a differential in power. The bully often holds power, or the perception of power, over the person being bullied.

Bullying at work can take many forms and exists on a sliding scale of seriousness up to and including harassment, which is itself a statutory civil and criminal offence.

Although bullying per se is not a term that is found in employment law, if someone is being bullied by their employer, or by a manager or colleague at work, bullying could well be sufficient to prove a claim of constructive dismissal due to a contractual breach of trust and confidence.

What is Harassment at Work?

There are two forms of harassment in law that can arise within the workplace, and these are:

  1. General harassment of a person by another within the meaning of the Protection from Harassment Act 1997; and,
  2. Harassment of a person because of a protected characteristic, within the meaning of the Equality Act.

The definition of harassment in respect of the two different strands of law are slightly different.

Harassment Generally

The Protection from Harassment Act 1997 protects everyone from harassment regardless of whether they have protected characteristics or not. Harassment is defined as follows:

‘A person must not pursue a course of conduct—

  1. which amounts to harassment of another, and
  2. which he knows or ought to know amounts to harassment of the other.’

The offence is therefore broad and the bar fairly low for it to be committed, and the courts have consistently found in favour of employees in workplace situations. It contains both a factual assessment in that the employee must prove that there have been actions by an employer or fellow employee that amounts to harassment, and that the harasser knows amounts to harassment, which effectively means that the employee must prove intent or recklessness.

Harassment under the Equality Act

This is a specific form of harassment on the grounds of a protected characteristic that must be brought in the employment tribunal. You only have three months to bring such a case, so time is of the essence.

The Equality Act defines harassment as:

  1. A person (A) harasses another (B) if—
    • A engages in unwanted conduct related to a relevant protected characteristic, and
    • the conduct has the purpose or effect of—
      • violating B’s dignity, or
      • creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
  2. A also harasses B if—
    • A engages in unwanted conduct of a sexual nature, and
    • the conduct has the purpose or effect referred to in subsection (1).
  3. A also harasses B if—
    • A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
    • the conduct has the purpose or effect referred to in subsection (1), and
    • because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
  4. In deciding whether conduct has the effect referred to in subsection (1), each of the following must be taken into account—
    • the perception of B;
    • the other circumstances of the case;
    • whether it is reasonable for the conduct to have that effect.
  5. The relevant protected characteristics are—
    1. age;
    2. disability;
    3. gender reassignment;
    4. race;
    5. religion or belief;
    6. sex;
    7. sexual orientation.

An employee must prove harassment

In the case of harassment brought in the employment tribunal, the employee must prove harassment, which is defined as ‘creating a hostile environment’ and/or ‘violating [an employee’s] dignity’, but also that the harassment was because of a protected characteristic, as defined above. Harassment of a sexual nature is also harassment, if it is unwanted.

Harassment claims under the Equality Act are usually low value, however, when they are linked to a constructive dismissal or direct discrimination claim, they can be very valuable.

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