Source: CPID
Date: March 2006

This factsheet gives introductory guidance. It:

• sets out the many forms and grounds of harassment at work
• outlines how harassment affects people and organisations
• examines the legal implications if employers allow such behaviour to go unchallenged
• gives guidance about the key steps to eliminate harassment and what policies are needed
• includes the CIPD viewpoint.

What is harassment and why does it happen?

Harassment is any unwanted behaviour that violates dignity or creates an intimidating, humiliating or offensive environment. Harassment can take many forms and occur for a variety of reasons. It may be related to age, sex, race, disability, religion, sexuality or any personal characteristic of an individual. It may be directed at one person or many people. Often it takes place when there are no witnesses, but not always. It can be persistent behaviour over a period of time, but a one-off act may also amount to harassment. 

It is not the intention of the perpetrator that is key in deciding if harassment has occurred, but whether the behaviour is unacceptable by reasonable normal standards and is disadvantageous or unwelcome to the person or people subjected to it or witnessing it. In the CIPD survey1 13% of respondents reported experiencing harassment or bullying in the past 12 months. It is important to distinguish sexual harassment from sexual relationships freely entered into and acceptable to those involved. 

Harassment thrives in a workplace culture where it is ignored rather than challenged. No complaints do not mean no harassment is happening. Harassment can lead to illness, absenteeism, less commitment, poor performance and resignation. The conflict which harassment creates should not be underestimated. Employees can be subject to high levels of personal stress which can damage morale and lead to higher labour turnover, reduced productivity, lower efficiency and divided teams. 

There needs to be a clear, well-communicated policy so people know the process to follow if they have concerns about the way they, or their colleagues, are being treated. They need to be confident that making a complaint will not result in further intimidation or victimisation for themselves or anyone else involved. 

What are the grounds and forms of harassment? Grounds 

UK discrimination law was amended in 2003 to cover harassment on a variety of grounds including disability, colour, ethnic or national origin, race, religious belief or other similar philosophical belief, and sexuality. Since October 2005 implementation of the Equal Treatment Amendment Directive means the Sex Discrimination Act contains a specific prohibition against harassment and sexual harassment. 

There is no one checklist of what defines harassment as it is often specific to the person, relating to their feelings of respect and dignity. 

Individuals are protected from discrimination both while applying for a job, during it, and after the working relationship ends (for example in terms of the provision of a verbal or written reference). There is also protection for people against harassment on the basis of their membership or non-membership of a trade union and, in Northern Ireland, against harassment on the basis of political belief. 

Forms 

Harassment and bullying can range from extremes such as physical violence to less obvious forms like ignoring someone. Forms of harassment include:

• physical contact
• jokes, offensive language, gossip, slander, sectarian songs and letters
• posters, graffiti, obscene gestures, flags, bunting and emblems
• isolation or non-cooperation and exclusion from social activities
• coercion for sexual favours
• pressure to participate in political/religious groups
• intrusion by pestering, spying and stalking
• failure to safeguard confidential information.

Harassment can also exist as a result of the general prevailing culture, for example one in which it is acceptable to tell homophobic jokes. 

Who is responsible when harassment happens at work? 

Harassment has a negative effect on employees and employers, and both have responsibilities when it happens. 

Employers’ responsibilities 

Employers need to take action to prevent harassment, encourage incidents to be reported, respond promptly and ensure policies are followed correctly. Legally, they have a common law duty of care, and responsibilities under health and safety and discrimination legislation. CIPD research shows that employers need to provide a positive working environment to satisfy employees’ expectations under the psychological contract (see our factsheet on the Managing the psychological contract). 

Employers’ responsibilities extend to any environment where work-related activities take place. These include social gatherings organised by the employer such as work parties or outings (when they are held at a time or place associated with the workplace). Organisations must maintain their commitment to promoting an open and non-threatening environment on these occasions. If they do not, the employer could be liable unless they were able to show they took reasonable steps to prevent harassment. 

An employer can be ordered to pay unlimited compensation where harassment has occurred, including the payment of fines for injury to feelings. 

Individual responsibilities 

Individuals can be prosecuted under criminal as well as civil law and they could be personally liable and have to pay compensation themselves, as well as any payment the organisation may be ordered to make. 

Individuals also have a responsibility to behave in ways which support a hostile-free working environment for themselves and their colleagues. They should play their part in making the organisation’s policy a reality and be prepared to take appropriate action if they observe or have evidence that someone else is being harassed. 

What actions are needed to tackle harassment? 

Policies, communication and training 

The sensitivities surrounding harassment have important implications for the design of effective policies and procedures to prevent it occurring. A well-designed policy statement is an important first step in addressing harassment and should cover all the complexities of intimidating behaviour, including bullying. Policy statements should be agreed with union representatives. Another CIPD survey2 showed that in 2004, 91% of organisations had a diversity or equal opportunities policy, 83% had harassment or bullying policy and 39% had a policy covering dignity at work. A policy does not automatically change cultures and behaviours, so senior management support and communicating the policy is essential, through staff handbooks and intranet, induction and training programmes, and appraisal interviews. 

Policy statements should:

• give examples of what constitutes harassment and intimidating behaviour – it is also useful to define positive and supportive behaviours
• explain the damaging effects and why it will not be tolerated
• state that it will be treated as a disciplinary offence
• clarify the legal implications of harassment
• describe how to get help and make a complaint, formally and informally
• undertake that allegations will be treated speedily, seriously and confidentially
• promise protection from victimisation for making a complaint
• clarify the responsibilities of line managers, HR departments and the role of union or employee representatives
• make it the duty of supervisors/managers to implement policy and ensure it is understood
• emphasise that every employee carries responsibility for their behaviour.

Policies should be communicated so that all employees:

• know their rights and personal responsibilities under the policy
• understand the organisation’s commitment to deal with harassment
• are aware of who to contact if they want to discuss their experiences in order to decide what steps to take
• know how to take a complaint forward and the timescales for any formal procedures.

Any policy should be monitored for effectiveness, including:

• records of complaints, who was involved and where, why and how they occurred
• individual complaints to ensure resolution and no victimisation.

Regular reviews are important to ensure policies and procedures are appropriate and effective. Employers can find out about experiences of harassment and levels of confidence in the policy and procedures through general employee attitude questionnaires or specific surveys, or through informal feedback, return-to-work interviews after periods of absence, appraisal discussions, training feedback or exit interviews. 

Training can prevent harassment being accepted or condoned. Those with responsibility for implementing the policy should be given specialist training. 

Dealing with complaints 

Complaints should never be ignored but investigated swiftly and confidentially ensuring the rights of all are protected. An employer who fails to investigate has little defence at an employment tribunal. Procedures should provide informal and formal mechanisms for raising complaints. Clear time-scales should be set for the resolution of complaints, taking account of legal limitations. 

Advice and counselling 

Employees should be able to contact a nominated person, who may be a trained volunteer colleague, to discuss their experiences in the strictest confidence. This can help complainants decide what course of action to take by exploring their options. The decision to progress a complaint should rest with the individual. However, complainants should be encouraged not to ignore behaviour that makes them uncomfortable, but to take appropriate action so that the behaviour stops. The consequences of not taking action should be explained. 

Nominated contacts for harassment should be carefully selected and trained. Their role should be independent of investigations and they should not be required to provide evidence in proceedings. They should receive ongoing support from management to fulfil this brief. They should understand the nature of the issues related to different forms and grounds of harassment and intimidating behaviour. They should also be able to talk with complainants freely and confidentially in a private environment. They can come from all departments and levels of an organisation. 

Mediation is an increasingly useful tool in managing conflict at work, including harassment issues where difficult personal issues are involved, and it is often one individual’s word against another’s. Mediators can come from outside or inside an organisation. 

Guidance and counselling can be offered to people whose behaviour is unacceptable, as well as those affected by being harassed. Simply punishing those responsible for the harassment risks isolating individuals who may not understand how their behaviour is affecting their colleagues. Sometimes people are unaware of, or insensitive to, the impact of their actions and counselling can help them to accept the impact of their behaviour, change behaviour or prevent further incidents. Being clear about what is acceptable behaviour at work, as well as defining unacceptable behaviours, will prevent ambiguity and stop harassment flourishing. 

Informal procedures 

Ideally, complaints should be dealt with internally and informally. Solutions can be reached quickly, with minimum risk to confidentiality. It pays to act quickly to reduce personal embarrassment and suffering, avoid disruption to work and working relationships and, where complaints are contested, expensive litigation costs and damaged business reputations. 

In many cases it is sufficient for the recipient of harassment to raise the problem with the perpetrator, pointing out the unacceptable behaviour. But if an employee finds this difficult or embarrassing, informal procedures should enable support from a colleague, an appropriate manager or a personnel department representative. A choice of contact should be available in case the person’s manager is the harasser. 

Formal procedures 

Formal procedures are needed if the harassment is serious, if it is the individual’s preference or where an informal approach has failed. Some modification to grievance procedures may be needed for this and employees must know to whom they should make a complaint – for more information see our factsheet on Discipline and grievance procedures. 

Investigation 

Harassment should be treated as a disciplinary offence. Investigation procedures should provide:

• a prompt, thorough and impartial response
• independent, skilled and objective investigators
• representation for both parties
• complaint details, the right to respond and adequate time to respond
• a time-scale for resolving the problem
• confidentiality for all parties.

A record of complaints and investigations should always be made. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated confidentially and meet the requirements of the Data Protection Act 1998 – for more information see our factsheet on Data protection. 

After the procedure 

Where a complaint is upheld it may be necessary to relocate or transfer one party. It should not automatically be the complainant who is expected to move, but they should be offered the choice where practical. 

Where the perpetrator is transferred, no breach of contract must occur or a claim of constructive dismissal could arise. Transfers on disadvantageous terms can be offered to the perpetrator where allegations are proved, as an alternative to dismissal. 

If a complaint is not upheld, a voluntary transfer of one of the employees should be considered. It is important to check the harassment has stopped and there has been no victimisation or retaliation. 

CIPD viewpoint 

Achieving high levels of performance from people at work is essential in today’s competitive market place. Organisations should treat any form of harassment seriously not just because of the legal implications, but because it can lead to under-performance at work. Eliminating all forms of harassment and bullying makes good business sense. A workplace environment which is free from hostility enables people to contribute more effectively to organisational success and to achieve higher levels of job satisfaction. People cannot make their best contribution when under fear of harassment, bullying or abuse. 

An organisation’s public image can be badly damaged when incidents of harassment occur, particularly when they attract media attention. This can affect relationships between an employer, their current and future employees, as well as their customers. 

Developing and implementing preventive policies and procedures creates a climate of greater confidence in being able to challenge harassment. The right policies and procedures enable employers to tackle individual complaints quickly and effectively. 

An organisation’s goal should be to develop a culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal. Everybody needs to feel responsible for challenging all forms of harassment and for upholding personal dignity. 

References 

• CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2004) Employee well-being and the psychological contract. London: CIPD.
• CHARTERED INSTITUTE OF PERSONNLE AND DEVLOPMENT. (2004) Managing conflict at work: a survey of the UK and Ireland. London: CIPD.

Further reading 

Books

• ADVISORY CONCILIATION AND ARBITRATION SERVICE. (2005) Bullying and harassment at work: a guide for managers and employers. London: ACAS. Available at: http://www.acas.org.uk/
• TEHRANI, N. (2005) Bullying at work: beyond policies to a culture of respect. Guide London: Chartered Institute of Personnel and Development. Available at http://www.cipd.co.uk/guides

Journal articles

• CORSI, J. (2005) A goodbye kiss for harassment. People Management. Vol 11, No 19, 29 September. p20.
• Mind your language. (2003) People Management. Vol 9, No 18, 11 September. p17.
• SIMPSON, S. (2002) How to deal with aggression at work. People Management. Vol 8, No 8, 18 April. pp52-53.
• WOLFF, C. (2006) Ousting the workplace bully: learning from experience. IRS Employment Review. No 841, 17 February. pp8-17.

by Clive Lewis, former HR Director and CEDR accredited mediator
March 2006

The front page of the business section of the Sunday Times, March 12 2006, detailed a rather public falling out amongst some of the key members of the board of Vodafone. The story being articulated wasn’t particularly unusual. In its simplest form, it appears to be a case of a relatively new Chief executive (Arun Sarin) attempting to put his mark on the business and run it in line with his conviction. However, other members of the board, including the current chairman Lord MacLaurin appear to have different views about the direction in which the company is going and the way in which it is being led. This dispute has now spilt into the domain of key investors who have themselves called a meeting with the Chairman to discuss the company’s lack of strategic direction. 

Although the detail may differ slightly, this type of scenario probably takes place in numerous organisations across the country. What was unusual about this one however, was the candid way in which we the public have had a blow by blow account of events. We have our good friends in the media to thank for this. 

A similar scenario unfolded before our very eyes a few years ago when a Chief executive of a well-known retailer went through a prolonged exit. The CEO was leaving the company with what was considered to be rather generous elements of his remuneration package, including bonus and pension, intact. The corollary of his departure made headline news because of what was being billed at the time as ‘reward for failure’. The Company’s performance during his tenure was viewed to have been less than staggering, this also being reflected in the share price. 

What many people don’t know however was that this particular scenario went to mediation. One day it was on the front pages, then it disappeared and nothing else was heard of it. Two of the countries most senior and experienced mediators were called in to try and resolve the dispute that had developed. They succeeded. 

The fact is that there will always be disputes at senior levels in organisations. People who occupy very senior positions in organisations are usually blessed with a personality where they are not backward in coming forward to express their feelings. This is often done with some force. 

Even if an employee dispute doesn’t hit the front page of the business section of The Times, it is likely to attract its own media within an organisation. An example of this is the smoker’s corner. Quite often, if you want the latest gossip on organisation happenings you need to listen in to the conversations that take place amongst employees who gather for their regular nicotine catch up sessions. Someone in the group will have heard about fallout and then has to demonstrate to fellow smokers that knowledge is power. Others replicate the same approach, now sharing it with less privileged non-smokers. Within a few hours you could have a workforce of hundreds talking about the dispute. Of course, while they are talking, they are probably not working.

Growing trend of workplace mediation

In the UK the use of mediation within the workplace has been steadily growing, with more employers using it as an informal method of dispute resolution. With an increasing number of employment related cases being drawn into the media spotlight, organisations can save time, money and quite often their reputation by engaging mediation skills early on when major disputes arise. 

But what is workplace mediation? Workplace mediation is based on the principles of encouraging constructive communication in a safe and confidential environment, identifying mutual solutions and agreements and restoring respectful, professional working relationships. It is a voluntary, confidential informal process that helps people who are in dispute start talking again, and to jointly agree how to work together better in the future. One of the real values of workplace mediation is that the process can take place, without any employment rights being lost. For example, if an employee is engaged in the tortuous grievance and disciplinary procedure, which came into effect in October 2004, they can still opt for mediation whist the disciplinary process continues. Mediation is ‘without prejudice’. 

For maximum effect, the mediator should be a neutral, third-party, and be seen as such by those with the dispute. The mediator should have with the skills required to cope with emotion, grievances and strong opinions. He or she must be a very effective listener and observer, as well as having the ability to understand the real cause and core of the problem. It is also important to be able to take the parties in conflict to a different ’space’ of potential solutions. Integrity, neutrality and the dexterity to cope with crises, hidden agendas, long-standing conflict and animosity, as well as unexpected disclosures are absolutely essential. Disputes can often involve more than one party and be culturally diverse, so understanding the power and balance of the relationship is fundamental. In the Vodafone case for example the mediator would need to consider the views of the noted board members but also the key investors that are voicing their concerns. Workplace mediation skills can produce very sound and satisfying rewards. Helping people to overcome blockages and prejudices and to reach their own agreement, which may often involve significant movement on their part, invariably demands sensitivity, determination and patience. One of the most important factors is that the resolution of the dispute remains in the hands of the parties. The mediator will facilitate a process to help them get there.

The Business case

Figures from the last CIPD Managing Conflict at Work survey of 1,190 employers suggest that dealing with conflict is taking up more and more HR time. Over 60 per cent of respondents say they have seen an increase in the use of HR departments to resolve individual disputes in the past 12 months. And it is time-consuming and costly: employers say they are spending an average of 10.5 days per case dealing with disciplinary and grievance issues little less than the 12.5 days they say is spent preparing for a tribunal case. 

There are many reasons that can explain why workplace mediation is now becoming an increasingly used method of dispute resolution for employee conflicts. The high increase in the number of employee complaints, the higher levels of compensation, the continuing introduction of new employment legislation and, for many, the realisation that formal procedures and investigations can in some circumstances be so adversarial and stressful to all concerned that any possibility of people working together again is minimal. 

HR directors are often asked to justify various HR interventions. Workplace mediation has a sound business case. Conflict decreases productivity, whilst increasing stress and sickness levels. Mediation adds real value by taking these issues away without attracting huge legal fees. HR professionals are often best placed to deploy the skills required to be a successful mediator. But it is not an exclusive HR activity. Line managers of other functions can also become workplace mediators if they possess the key people interaction skills required to do so. 

The principles of mediation can also be used to support other areas such as

• Engaging key employees to collectively work towards business priorities
• Supporting the merger and acquisition process
• Helping to implement change
• Facilitating board level interaction

In summary

The Vodafone case is a great example of demonstrating the value that workplace mediation could add. It is a little unfortunate that due to the nature of the mediation process for handling disputes, its success is often not realised, due to confidentiality restrictions. However, the more it is used, the more the value will be seen by those who have used and the more it will be recommended as a valuable process to be adopted.