Bullying and harassment in the workplace

The terms ‘bullying’ and ‘harassment’ are often used interchangeably to describe intimidating or offensive behaviour in the workplace.

Bullying is not, strictly speaking, against the law.

Unlike harassment at work (see further below), there is no legal definition for workplace bullying, and bullying is not a claim which you can bring in the Employment Tribunal or in the civil or criminal courts. (However, aggressive, unpleasant, or “bullying” behaviour may be harassment – see below for more details).

A claim for harassment in the civil courts, or even the criminal courts, may be possible where you have been subjected to a particularly serious incident, or a course of action which amounts to harassment. Working Families does not offer advice on civil or criminal court matters. We would recommend that you seek legal advice before deciding where any claim should be made, and speak to the police if you think the harassment you are suffering may be a police matter. Here is some further information from Citizens’ Advice. 

What is harassment in the workplace?

Broadly speaking, there are two types of harassment which are covered in the Equality Act 2010:

• harassment which relates to a protected characteristic; and
• harassment related to unwanted conduct of a sexual nature, or because a person rejected or submitted to conduct of a sexual nature.

Working Families cannot offer detailed advice on sexual harassment in the workplace, as this falls outside the services of this charity – for expert advice and support on this issue we would recommend that you speak to your local Law Centre or an expert advice service in this field, e.g. Rights of Women.

Definition of Harassment

Harassment (which isn’t sexual harassment) is defined by the Equality Act 2010 as any unwanted behaviour which you find offensive or hostile, which is related to a relevant protected characteristic and the conduct has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

Here is a link to section 26 of the Equality Act 2010 which sets out the exact wording of the definition of the protections against harassment.

It is important to look at each part of this definition, as the wording is very important – if a claim for harassment is brought, the court will look at each point to see if the claim meets the test:

• It is unlawful harassment under the Equality Act 2020 only if the behaviour is related to what are known as ‘relevant protected characteristics’ – in the case of harassment, these are race, religion or belief, sex, sexual orientation, age, disability, or gender reassignment. The list does not include pregnancy or maternity. (Please do read on to our section below on comments at work relating to pregnancy and/or maternity, and look also at our advice pages on sex discrimination for advice on this issue. 
• Harassment must be ‘unwanted’ behaviour or conduct. Unwanted means “uninvited” or “unwelcome”. You don’t need to have previously objected to something for it to be unwanted; a one-off incident can amount to harassment. The person harassing you does not need to be aware that their behaviour is unwanted.
• It can still be harassment even if no-one actually meant to offend you – the issue is whether you found the conduct offensive or hostile.
• You can also complain about harassment even if the unwanted behaviour is not directed at you; it is enough for the behaviour to create an environment that you find offensive – for example if there are offensive comments which you have heard about certain women colleagues in your workplace and you are a man.
• You don’t need one of the protected characteristics above to apply to you to be harassed in relation to that characteristic. For example, if a colleague harasses you for being gay even though you are not, this can still constitute harassment. Another example is if a colleague makes unwanted jokes towards you because they think you have a disability (even though this is not the case) or because someone else, like a family member, has a disability – under these circumstances you may still have a claim for harassment.

Inappropriate comments about pregnancy, maternity, childcare or other similar issues – is this harassment?

According to the Government’s data in 2016, one in five mothers (20%) said they experienced harassment or negative comments related to pregnancy or flexible working from their employer/colleagues.

Inappropriate comments at work which relate to issues which would not relate to a male employee, for example comments (by managers or colleagues) to a pregnant employee about their pregnancy or issues which relate to the pregnancy, can constitute harassment related to sex under the Equality Act 2010.

Here is a link to an example of a case which went to Tribunal in 2020, where the Employment Tribunal found that there had been unlawful sex discrimination after a number of comments were made about the Claimant’s pregnancy.

Such conduct by the employer would need to meet the legal test set out above –  causing you to feel that your dignity has been violated or that you are being subjected to an intimidating, hostile, degrading, humiliating or offensive environment.

An Employment Tribunal will also look whether it was reasonable that you felt that way, and at the intention of the person accused of harassment.

As with any claim raised informally with an employer, or formally in a claim, it will be important to gather evidence of each act of harassment and its effect on you. If you are bringing a claim, this is important both to establish that your situation meets the legal test, but also to be able to establish a basis for compensation.  See our page on how Employment Tribunal’s calculate compensation for more detail on this point.

Examples of comments which may amount to unlawful discrimination, and which have arisen in successful challenges in UK courts, include “you planned your pregnancy well”, and “have you told [manager] that you won’t be returning after maternity leave?” – see the Duffy case above.

Please note that all cases are different, and just because a comment has been found to be unlawful sex discrimination in one situation, this does not mean it will necessarily be unlawful sex discrimination in another context. The Employment Tribunal looks at all cases in detail, including the circumstances, the strength of evidence that a comment was made as the Claimant says, the effect of the comment on the Claimant, and potentially various other factors including the employer’s training for staff on harassment, before making a decision about whether the test for sex discrimination has been met.

A possible defence for your employer?

S109(4) of the Equality Act 2010 provides that an employer is not liable for harassment if the employer has taken “all reasonable steps” to prevent harassment. This defence is rarely successful, but it is often raised in harassment claims. It is up to the employer to show that they took such steps.  It is important in all harassment cases to ask questions about what the employer knew about the harassment, and what they did generally to make sure that harassment was not tolerated by staff.

• For example, many employers have a policy on bulling and harassment in the workplace, and this is the norm in larger workplaces. If you are concerned about what is being done to prevent harassment in your workplace, you want to know how to report an issue, or you want to know how your employer should be responding to what is happening to you, you should look at this policy, or ask to see it.
• Many employers require all staff to attend training on what harassment is, and how to stop it taking place in the workplace. Requiring staff to undertake such training can go some way to wards establishing this defence, but an Employment Tribunal can be asked to look behind the training at what actually happens at the workplace when harassment is reported. Questions could include: when was the most recent training undertaken? Was it effective, e.g. how many complaints of harassment have there been in recent years? Do staff/witnesses in the case know what the employer’s policy says? In your situation, did staff follow the policy?
• In a case in 2020 (Allay (UK) Ltd v Gehlen) the Employment Appeal Tribunal said that employers cannot rely on “stale” equality and diversity training. In this case, the training took place 2 years earlier, and had been ignored or forgotten, as staff did not follow the training when they received a report of harassment.

In workplaces where there have been significant issues around harassment, the duty on the employer can be higher – for example in cases where a court has found that a number of incidents of harassment have taken place, if the employer wants to try to rely on the reasonable steps defence, they may need to demonstrate that they undertook “specific and targeted” training on how to deal with such incidents. This could include initiating a Working Group, or putting in place specific training on issues that have been raised in a complaint.

What to do about bullying and harassment at work

If you are struggling with how you are being treated at work, including harassment in the workplace, you should seek help. Don’t suffer in silence, and do protect yourself by seeking advice – you can call our free advice helpline, and do read our detailed advice pages to find out more about your rights.

• The first thing to note is that there are strict time limits on bringing a case to an Employment Tribunal, which you should always keep in mind – if you bring a case “out of time” a Tribunal may refuse to hear it. Here is more information on time limits, and how to start a claim through talking to Acas.
• You should write down any comments which you find upsetting, including the date on which they were made, by whom, the name of any witnesses, and keep a record – even if you don’t want to raise the issue now, if the comments continue, it will be important to show how many there were, who they were by, and to have that record in case you either want to raise this issue informally with your employer, or in case you need to bring a claim. See our page on work problems.
• It is usually best to raise any issue informally first. How you do this may depend on your situation, what has been said or done, and by whom. Usually you would raise the issue with your manager, or with HR. Sometimes behaviours are not known about because no one has reported them, or because reports have not reached the right person.
• Sometimes issues are left unchecked because someone doesn’t understand the harm they are causing. If you are able to explain to your manager/HR/the person(s) involved how their behaviour makes you feel, this may be a simple solution to the problem. It is also helpful to keep a note of the effect of any comments on you – for example if you have lost sleep, or if you have felt unwell.
• In any discussions about the issue, try to remain as calm and professional as possible, point out the facts (as you heard or experience them) and put forward any other factors you want to have considered, including any positive suggestions you have for a resolution with those involved.
• You may also be able to seek support from your Trade Union, or there may be a staff representative or a trusted colleague who can be your companion in these discussions.
• If your health is affected, speak to your midwife and/or GP, particularly if you feel that you would benefit from mental health support.
• Please also read our detailed advice and the steps outlined in our web page on what to do if you are having problems at work, which also covers how to make a formal complaint using your employer’s grievance procedure, and the things to consider if you may need to bring legal action.
• Acas (the Advisory, Conciliation and Arbitration Service) has a free helpline for advice (0300 123 1100) which can advise you on time limits and how to start Early Conciliation. Acas has also produced a guidance leaflet on bullying and harassment.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

• 

  Would your employer benefit from support from Working Families?

  Would your employer benefit from some support & guidance from Working Families? If you would like to make your employer aware of how Working Families can help them, we have an introduction letter template available that you can give to the relevant person in your organisation.