Harassment and Bullying at Work: Employer's Guide
Understanding workplace harassment and bullying. Legal definitions, employer liability, investigating complaints, and creating a safe workplace.
Harassment and bullying destroy workplace culture and expose employers to significant liability. Understanding your responsibilities helps prevent problems and handle them properly when they arise.
Understanding the Difference
Harassment (Unlawful)
Legal definition (Equality Act 2010): Unwanted conduct related to a protected characteristic that has the purpose or effect of:
- Violating someone's dignity, OR
- Creating an intimidating, hostile, degrading, humiliating, or offensive environment
Protected characteristics:
- Age
- Disability
- Gender reassignment
- Race
- Religion or belief
- Sex
- Sexual orientation
Sexual Harassment
Specific forms:
- Conduct of a sexual nature (words, gestures, touching)
- Less favourable treatment for rejecting or submitting
- Related to sex or gender reassignment
Bullying (Not Specifically Unlawful)
No legal definition, but generally: Offensive, intimidating, malicious, or insulting behaviour that makes someone feel upset, threatened, humiliated, or vulnerable.
Not directly unlawful but can be:
- Breach of trust and confidence
- Breach of duty of care
- Harassment if linked to protected characteristic
- Health and safety breach
- Constructive dismissal trigger
Examples
Harassment Examples
| Protected Characteristic | Example Conduct |
|---|---|
| Race | Racist jokes, comments about accent |
| Sex | Sexist remarks, sexual comments |
| Disability | Mocking someone's condition |
| Age | Patronising older workers, "old timer" comments |
| Religion | Ridiculing religious practices |
| Sexual orientation | Homophobic remarks |
Bullying Examples
- Constant criticism
- Public humiliation
- Unrealistic workload
- Exclusion from meetings
- Spreading rumours
- Taking credit for others' work
- Undermining authority
- Shouting or aggressive behaviour
The Grey Area
Behaviour can be both:
- Bullying that targets protected characteristic = harassment
- May not be obvious which characteristic is involved
- Treat seriously regardless of categorisation
Your Legal Liability
Vicarious Liability
You're liable for harassment by employees if:
- It occurred in the course of employment
- You cannot show you took all reasonable steps to prevent it
"Course of Employment"
Includes:
- At the workplace
- Work events
- Work trips
- Social events connected to work
- Online/social media about work
The "Reasonable Steps" Defence
To have a defence, you must show:
- Anti-harassment policy in place
- Training provided
- Complaints taken seriously
- Appropriate action when issues arise
- Ongoing commitment to prevention
Third Party Harassment
Previously specifically covered; now covered under general duty of care and may amount to harassment if connected to protected characteristic.
Prevention
Policies
Anti-harassment policy should include:
- Clear statement that harassment won't be tolerated
- Definition of harassment and bullying
- Examples of unacceptable behaviour
- How to report concerns
- Investigation process
- Possible sanctions
- Protection from victimisation
Training
For all staff:
- What harassment is
- Why it's unacceptable
- How to report concerns
For managers:
- How to spot signs
- How to handle complaints
- When to escalate
Culture
- Lead from the top
- Challenge inappropriate behaviour early
- Act on complaints
- No tolerance for perpetrators (regardless of seniority)
Handling Complaints
When Someone Complains
Immediate steps:
- Listen carefully
- Take it seriously
- Ask what they want to happen
- Explain the process
- Reassure about confidentiality (within limits)
- Consider interim measures
Informal Resolution
May be appropriate if:
- Relatively minor
- First occurrence
- Complainant prefers informal
- Reasonable prospect of resolution
Options:
- Mediation
- Informal discussion with alleged perpetrator
- Facilitated conversation
Formal Investigation
Required for:
- Serious allegations
- Pattern of behaviour
- Complainant requests formal process
- Informal resolution unsuccessful
Process:
- Appoint impartial investigator
- Interview complainant, witnesses, alleged perpetrator
- Gather evidence
- Reach findings
- Make recommendations
Supporting the Complainant
Throughout the process:
- Keep them informed
- Protect from victimisation
- Consider wellbeing
- Don't blame them
- Maintain confidentiality
The Alleged Perpetrator
Also has rights:
- Know allegations
- Opportunity to respond
- Right to be accompanied
- Fair process
- Presumption of innocence until findings
Investigation Process
Getting It Right
- Investigate promptly
- Be thorough
- Be impartial
- Document everything
- Consider all evidence
- Reach reasoned conclusions
Findings
Possible outcomes:
- Allegation upheld (on balance of probabilities)
- Allegation not upheld
- Inconclusive/insufficient evidence
- Some allegations upheld, some not
After Investigation
If upheld:
- Disciplinary action against perpetrator
- Support for complainant
- Consider wider lessons
If not upheld:
- Explain to complainant
- Consider what support they need
- Rebuild relationships if possible
Disciplinary Action
Range of Sanctions
Depending on seriousness:
- Informal warning
- Written warning
- Final written warning
- Dismissal
Factors to Consider
- Severity of harassment
- Impact on complainant
- History of similar behaviour
- Perpetrator's length of service
- Remorse shown
- Any mitigating factors
Gross Misconduct
Serious harassment may be gross misconduct justifying summary dismissal:
- Physical assault
- Serious sexual harassment
- Persistent harassment despite warnings
- Discrimination-related harassment
Victimisation
What It Is
Treating someone badly because they:
- Made a harassment complaint
- Supported someone's complaint
- Gave evidence
- Did anything under the Equality Act
Unlawful
Victimisation is unlawful regardless of whether original complaint was upheld.
Protection
- Monitor complainant's treatment
- Act if victimisation occurs
- Take action against victimisers
Common Challenges
"It Was Just Banter"
Reality check:
- Banter the recipient finds offensive isn't banter
- One person's joke is another's harassment
- Repeated "jokes" can create hostile environment
- This defence rarely succeeds
He Said/She Said
When evidence conflicts:
- Assess credibility of both
- Look for corroboration
- Consider consistency
- Balance of probabilities (not beyond doubt)
- Sometimes have to make difficult judgment calls
Senior Perpetrator
Challenges:
- Power imbalance
- Fear of retaliation
- May be harder to investigate
- Same rules must apply
Approach:
- Take seriously regardless of seniority
- Consider independent investigator
- Protect complainant
- Apply sanctions fairly
Repeat Complainant
Considerations:
- Each complaint on its merits
- Pattern might indicate real problem
- Pattern might indicate vexatious behaviour
- Don't dismiss because of history
Record Keeping
What to Keep
- Complaints received
- Investigation records
- Outcomes
- Actions taken
- Monitoring records
How Long
At least 6 years (limitation period), longer if pattern relevant.
Confidentiality
Keep records confidential:
- Limited access
- Secure storage
- GDPR compliant
Legal Claims
Types of Claims
- Harassment claim (Equality Act)
- Personal injury (if health affected)
- Constructive dismissal
- Breach of contract
- Protection from Harassment Act 1997 (serious cases)
Time Limits
- Employment tribunal: 3 months less one day
- Personal injury: 3 years
- May claim against employer and individual
Compensation
- Uncapped for discrimination/harassment
- Includes injury to feelings
- Can be substantial
Checklist
Prevention
- Anti-harassment policy in place
- Policy communicated to all staff
- Training provided
- Managers trained to handle issues
- Culture of respect promoted
- Early intervention on minor issues
Handling Complaints
- Listen and take seriously
- Consider interim measures
- Investigate properly
- Keep parties informed
- Reach reasoned conclusions
- Take appropriate action
- Protect from victimisation
- Document throughout
After the Fact
- Monitor situation
- Support affected parties
- Learn lessons
- Update policies if needed
- Provide additional training if patterns emerge
Related answers
Disciplinary Procedure Steps UK
A step-by-step guide to running a fair disciplinary procedure in the UK. Follow these steps to stay ACAS-compliant and reduce your tribunal risk.
Workplace Investigations
How to conduct effective workplace investigations. Best practice for investigating misconduct, grievances, and complaints.
Grievance Procedure UK: Employer's Guide
How to handle employee grievances properly. Follow the ACAS Code, avoid tribunal claims, and resolve workplace issues effectively.
Frequently Asked Questions
- What's the difference between harassment and bullying?
- Harassment is unwanted conduct related to a protected characteristic (age, disability, race, etc.) that violates dignity or creates a hostile environment - it's unlawful under the Equality Act. Bullying is offensive behaviour not linked to protected characteristics - not specifically illegal but can breach contract and duty of care.
- Am I liable for harassment by employees?
- Yes, employers are vicariously liable for harassment by employees during employment unless you can show you took all reasonable steps to prevent it. This includes having policies, training, taking complaints seriously, and taking appropriate action when issues arise.
- What should I do if someone complains of harassment?
- Take it seriously immediately. Don't dismiss or minimise. Investigate thoroughly and promptly. Keep the complainant informed. Consider what interim measures are needed. Take appropriate action based on findings. Protect the complainant from victimisation.