Bullying and Harassmentby Andrew Wood
The law regarding bullying and harassment
There is no legal definition of bullying and so it is not possible to make a direct complaint to an employment tribunal about it. However, employees are able to bring complaints under law covering discrimination and harassment, which fall under the following legislations:
Equality Act 2010
The Equality Act 2010 provides a cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
The Equality Act became law in October 2010. It replaces previous legislation (such as the Race Relations Act 1976 and the Disability Discrimination Act 1995) and ensures consistency in what you need to do to make your workplace a fair environment and to comply with the law.
The Equality Act covers the same groups that were protected by existing equality legislation - age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity - it extends some protections to some of the groups not previously covered, and also strengthens particular aspects of equality law.
The Equality Act 2010 provides a new cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
The protected characteristics:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation.
The Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it, in other words if you can demonstrate that it is a proportionate means of meeting a legitimate aim.
Age is the only protected characteristic that allows employers to justify direct discrimination.
The Act has made it easier for a person to show that they are disabled and protected from disability discrimination. Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities, which would include things like using a telephone, reading a book or using public transport.
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender.
Marriage and civil partnership
The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.
Pregnancy and maternity
A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled. During this period, pregnancy and maternity discrimination cannot be treated as sex discrimination.
For the purposes of the Act, ‘race’ includes colour, nationality and ethnic or national origins.
Religion or belief
In the Equality Act, religion includes any religion. It also includes a lack of religion, in other words employees or jobseekers are protected if they do not follow a certain religion or have no religion at all.
Both men and women are protected under the Act.
The Act protects bisexual, gay, heterosexual and lesbian people.
The Criminal Justice Act
As well as the laws outlined above, there are also implications under the Criminal Justice and Public Order Act 1994, which made it a criminal offence to intentionally cause a person harassment, alarm or distress. The police have the power to immediately arrest people on reasonable suspicion of an offence and this can carry a penalty of imprisonment for up to six months and/or a fine of up to £5,000.
The Criminal Justice Act was followed up by the Protection from Harassment Act 1997, which is specifically designed for employment cases. The act establishes two levels of criminal offence:
- Low level – dealing with harassment
- High level – dealing with threats of violence.
The penalties upon conviction are the same as those of the Criminal Justice Act, with the addition of an imposed ‘restraining order’ to protect the victim or any other person mentioned in the order from further harassment.
Health and safety
Employers are also responsible for ensuring an employee’s health, safety and welfare at work under the Health and Safety at Work Act 1974. An employee who has suffered stress due to bullying and harassment may feel that the law relating to their health has been breached because the employer failed to deal with the issues. Again, this could lead to litigation.
In some instances, employees can resign and then claim ‘constructive dismissal’ on the grounds of breach of contract. This can happen if the employee feels that the mutual trust and confidence between themselves and their employer has been damaged through bullying and harassment and the employer’s ‘duty of care’ was breached.