Are bullying and harassment punishable by law?
The short answer is that bullying is not a legal concept but may still have consequences for an employer, but harassment is punishable by law.
Bullying and the law
Acas defines workplace bullying as “offensive, intimidating, malicious or insulting behaviour, and abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied”.
According to the Health and Safety Executive, this is a pattern of behaviour rather than isolated instances, and states that it “involves negative behaviour being targeted at an individual or individuals repeatedly and persistently over time”.
Although bullying itself does not have a legal definition, a bullied employee could resign and claim constructive dismissal. They would argue that they were forced to quit due to their employer’s intolerable behaviour, in this case their inability to follow an anti-harassment or anti-bullying procedure involving a proper investigation.
The key test is whether the Employment Tribunal agrees that the terms of the employee’s contract have been breached, leaving them with no option but to resign. This could include the implied term of the employer’s statutory duty to take reasonable steps to protect the health, safety and welfare of employees, under the Health and Safety at Work Act 1974.
This can be hard for an employee to prove, plus employees need to have worked for their employer for two years, but any one-off incident could be considered harassment.
Harassment and the law
Harassment is defined under the Equality Act 2010 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”.
The protected characteristics are:
Marriage and civil partnership
Pregnancy and maternity
Religion or belief
An employee making a complaint about harassment doesn’t have to be the subject of the harassment, or even have to have the relevant characteristic.
An individual who believes they have suffered from harassment may complain to an Employment Tribunal. If the claim succeeds, the employee can be awarded compensation for injury to feelings, or loss of earnings if they’ve had to leave their job.
No length of service is required for an employee to make such a complaint, and the compensation paid is uncapped. The Tribunal may also make recommendations to the employer to prevent more cases occurring. This advice is not binding, but failure to take it on board may be used against the employer in future cases.