The legal aspects of harassment/bullying and its implications for management
Bullying and harassment in the workplace is, arguably, the most significant personnel issue facing managers in the UK at the dawn of the twenty first century. As a relatively recent phenomenon, (only in terms of media exposure and public interest – clearly bullying and harassment are both as old as time) the issue of employee relations regarding overbearing and unpleasant colleagues is an economic as well as a social issue. The cost to the organisation, the recipient of the abuse, the remainder of the workforce and even the state of harassment is completely out of proportion to the measures which can be taken to curtail its advancement.
Yet any analysis of bullying in the contemporary workplace is akin to studying a constantly shifting target. Bullying remains ill defined in terms of the law and poorly researched in terms of academic literature. Furthermore, bullying is such a broad, all encompassing topic that, in the final analysis, it poses more questions than it answers. Not only are the standards of behaviour in the workplace perpetually being stretched to limits of litigation but the lack of accurate definition has only served to exacerbate the problem. As such, bullying and harassment in the workplace transcend the boundary of law, business studies, economics or human resources; discussions pertaining to harassment are sociological, political and even philosophical in both genesis and scope.
The aim of the dissertation is to show that bullying and harassment in the workplace are rife in the UK in 2005 and that the problem affects both the public and private sectors alike. Yet it is also the objective to highlight the many ways in which managers and organisations can begin to truly tackle the problem without resorting to extreme measures. Much of the discussion therefore involves an analysis of the latest legal requirements regarding behaviour at work in addition to a dissection of the most up to date procedures and policies as recommended by the leading British employment authorities, designed and drafted to reduce the emotional, legal and financial cost of bullying and harassment in the workplace.
The dissertation is divided into two distinct parts; the first section dealing with the legal aspects of bullying and laying down the conceptual guidelines for the study, the second part designed to highlight the specific problems for management including measures on how to avoid the most common pitfalls and future developments in employee relations and staff care.
Throughout the analysis, numerous case studies will be cited as well as UK laws and statutes and EU directives so as to establish the guidelines within which the discussion currently operates. In addition, an in depth look at the role of independent bodies such as ACAS and the CIPD in attempting to root out the causes of bullying in the workplace will be necessary to underscore the best cited descriptions and procedures for avoiding being taken hostage by bullying and harassment.
An overall conclusion will be based upon the accumulation of all of the evidence gathered without losing sight of the management practice dimension of the debate. However, before looking at the legal and managerial aspects of the topic, a definition of both bullying and harassment in the workplace is essential so as to establish the framework for the broader, ongoing argument.
A definition of bullying and harassment mean in the workplace: what this means within an organisation
The task of defining the nature of bullying and harassment is hindered by the variant strains of office and workplace abuse that are constantly being discovered. Laws that were devised for discrimination twenty five years ago are obsolete today as Britain becomes a more socially inclusive country and traditional barriers of exclusion, such as sexual orientation, are gradually worn down. Therefore, no singular definitive conclusion can be drawn as to the exact nature of the two forms of undermining somebody; indeed this is a key stumbling block in the delay of firmer legislation pertaining to bullying and harassment in the workplace. Harassment and bullying are, both, notoriously ambiguous and difficult to conceptually locate. However, this does not mean that attempts at definition are rendered futile, merely that they are certain to be problematic.
Harassment is a multi faceted description of a wide¬ range of underhand tactics employed by all sections of the workforce to belittle or humiliate another member of the team, and it can be of both a physical and mental nature. Bullying is, broadly speaking, much the same: it can be experienced as both a physical or mental act, though increasingly it is viewed as a solely mental or verbal phenomenon in light of the decline of manufacturing and industry in the UK and the gender fluidity of the contemporary workforce.
Bullying and harassment both exist as a gender centric phenomenon yet the more familiar scenario of males bullying females remains by far the most common type of work related abuse. Same sex bullying and harassment is likewise a recognised problem in the workplace yet figures are notoriously difficult to come across with regards to this type of abuse due to the considerable weight of the social stigma attached to the issue, yet there is an increasing volume of evidence being garnered on the effects of female bosses bullying female employees.
While correctly recognising the similarities, it is equally important to acknowledge the subtle yet important differences that exist between harassment and bullying in the workplace; though the two often overlap a dividing line is prevalent in the traits most common to each form of abuse and the recognition of this is imperative for managers when dealing with complaints pertaining to one or the other: he or she must be able to quickly decipher whether the complainant has been suffering alleged bullying or harassment.
Tim Field, one of the UK’s leading advocates for a more stringent set of laws to combat bullying, succinctly charts what he perceives to be the main differences between harassment and bullying in his Success Unlimited website (first viewed, 25/05/06), where he also highlights trademark character traits of the two forms of abuse .
Harassment Workplace bullying
Has a strong physical component, e.g. contact and touch in all its forms, intrusion into personal space and possessions, damage to possessions including a person’s work. Almost exclusively psychological (e.g. criticism), may become physical later, especially with male bullies but almost never with female bullies.
Tends to focus on the individual because of what they are (e.g. female, black, disabled, etc.) Anyone will do, especially if they are competent, popular and vulnerable.
Harassment is usually linked to sex, race, prejudice, discrimination, etc. Although bullies are deeply prejudiced, sex, race and gender play little part; it’s usually discrimination on the basis of competence.
Harassment may consist of a single incident or a few incidents or many incidents. Bullying is rarely a single incident and tends to be an accumulation of many small incidents, each of which, when taken in isolation and out of context, seems trivial.
The person who is being harassed knows almost straight away they are being harassed. The person being bullied may not realise they are being bullied for weeks or months - until there’s a moment of enlightenment.
Everyone can recognise harassment, especially if there is an assault, indecent assault or sexual assault. Few people recognise bullying.
Harassment often reveals itself through use of recognised offensive vocabulary, e.g. (“bitch”, “coon”, etc.) Workplace bullying tends to fixate on trivial criticisms and false allegations of underperformance; offensive words rarely appear, although swear words may be used when there are no witnesses.
There is often an element of possession, e.g. as in stalking. Phase one of bullying is control and subjugation; when this fails, phase two is elimination of the target.
The harassment almost always has a strong clear focus (e.g. sex, race, disability). The focus is on competence (envy) and popularity (jealousy).
Often the harassment is for peer approval, bravado, macho image etc. Tends to be secret behind closed doors with no witnesses.
Harassment takes place both in and out of work. The bullying takes place mostly at work.
The harasser often perceives their target as easy, albeit sometimes a challenge. The target is seen as a threat that must first be controlled and subjugated, and if that does not work, eliminated.
Harassment is often domination for superiority. Bullying is for control of threat (of exposure of the bully’s own inadequacy).
The harasser often lacks self-discipline. The bully is driven by envy (of abilities) and jealousy (of relationships).
The harasser often has specific inadequacies (e.g. sexual). The bully is inadequate in all areas of interpersonal and behavioural skills.
As well as recognising the difference between bullying and harassment, it is likewise important to acknowledge that bullying in an office environment is markedly different to the form of bullying covered most frequently by the media, which is typically concerned with adolescents and pre adolescents and the horrendous consequences of abuse on fragile teenage psyches, as Laurel Alexander (2002:201) underlines.
“Workplace bullying is the hurtful and repeated mistreatment of workers by their bosses, co workers or subordinates. It as a pattern of abusive remarks, arbitrary rages or attempts to sabotage a person’s work.”
Furthermore, unlike adolescent forms of bullying, harassment and aggression in the workplace are usually fostered by feelings of jealousy as opposed to sentiments of power, although this is also frequently the case. Analysts agree that it is often a fact that the targets of office and workplace bullies are generally amongst the most popular and competent members of the team. It is their inability to defend themselves that make them targets for the bullies.
Harassment also contains within it a myriad of sub sections and alternate definitions which make labelling a particular case as ‘harassment’ intensely problematic. The most commonly held belief is that harassment in the workplace is connected to sexual harassment, particularly conjuring up notions of unruly male bosses making unwanted advances towards their female, junior employees, as Wagner (1992:2) details.
“Although harassers come in both sexes, the great majority of cases involve one or more male borrowers and a lower level female employee. She is therefore still very much a proper pronoun when sexual harassment is discussed.”
The reason for this is because the genesis of the term sexual harassment was linked directly to the fundamental successes of the ‘second wave’ of feminist ideologists in the 1970’s, who themselves had borrowed the term sexism from the African American Liberation Movement. Managers and business insiders were forced to acknowledge the discrepancy between male and female experiences in the workplace to prevent what feminist writers such as Mary Daly and Susan Griffin (1987:7) saw as, “a masculine form of discourse which maintains male dominance by co opting women and suppressing the feminine.”
The organic link between the genesis of the terms sexism and racism is an important point to remember. Sexism is perceived in the eyes of tribunals and independent bodies in the same way as a racist claim and the two social stigmas are intrinsically intertwined. It forever casts a mark over both the perpetrator and the organisation, tarring both with the same discriminatory brush. Sexual harassment, like bullying, defies a conclusive definition as different acts are perceived in different ways by a cross section of alternate recipients. However, legal and administrative bodies have had to attempt to label the phenomenon to aid in the investigative process.
According to Karen Mannering (2000:46) the Trade Union Congress defines sexual harassment as “unwanted verbal or sexual advances, sexually explicit derogatory statements or sexually discriminating remarks made by someone in the workforce which are offensive to the worker involved which cause the worker to feel threatened, humiliated, patronised or harassed, or which interfere with the worker’s job performance, undermine job security or create a threatening or intimidating work environment.”
Clearly, sexual harassment asks more questions than it answers regarding boundary lines between office banter and psychological abuse but its significance has increased greatly since the feminist revolution of the 1970’s and 1980’s. The dynamics of the labour market have altered irrevocably within the past twenty years, no greater evidence required than the knowledge that two thirds of the membership of UNISON (the UK’s largest trade union with 1.4 million members) are women. And, as Miranda Philips (2004:51) attests, there has been a marked rise in the number of women in employment in the UK, reaching a zenith in the early 1990’s, which has brought with it significant consequences for the home, the workplace and, indeed, British society at large.
“Female employment now stands at a record high level, following an increase of 1.39 million women in employment between 1992 and 2002. Moreover, the increased female participation in the labour market during the 1990’s was entirely concentrated among women with children. Indeed, women are now more likely to return to work after childbirth than at any time in the past.”
It is important to note that workplace harassment can occur in a variety of alternative forms to the traditional male female sexual harassment, incorporating, for instance - same sex harassment, harassment due to ethnicity, religious beliefs, political convictions, age and physical structure. Many recent cases cited involving harassment in these guises would likewise come within the definitions of bullying: both involve mental cruelty inflicted for the sole reason that a person is fundamentally different to the workplace norm or the person who is inflicting the damage.
A definition of ‘organisation’ is also required if the breeding ground of bullying is to be effectively tilled with understanding and co operation; the unique dynamics that are at work within the organisation necessarily foster feelings of resentment, regret and revenge. The paradigm of organisation is not a simple process. It is, by nature, fraught with tension as groups of adults are made to share up to and beyond eight hours a day in each other’s company, many working within a team or for a line manager who is diametrically at odds with their personalities or beliefs. Disagreements and arguments are taken as a necessary part of the working day with solutions often only being reached via discord. Some characters may thrive within such an environment, while others may flounder. Yet it is not merely the spoken, articulated dynamics that constitute a workplace. Rather, as Hearn and Parkin (2001:3) ascertain, the concept of organisation is subject to further unarticulated forces and subconscious actions that serve to complicate harmony in the workplace.
“Organisations are commonly seen and understood as places of discourse, activity, of communication, even of noise, rapidity and speed. Yet what happens in organisations often involves silence, not just in the sense of quietness, but in the sense of that which is not spoken. Organisations are continually structured and practised through the unspoken. Accordingly, one might re understand organisations as very much (subject to) unspoken forces. These forces include gender, sexuality, violence and violation… if an organisational member or outsider finds something gendered or sexual, or harassing, violent or violating in an organisation, then it is – for their purposes and their reality.”
This is a point that will be repeated throughout the dissertation – the issue of awareness and the legal implications that it leaves as a legacy for analysts. What one person perceives to be harassment, another might view as harmless fun. For example, a man staring into space attempting to think a problem through could be misinterpreted by a female member of the team as unwanted eye contact and attention. The scenarios are seemingly endless and only serve to further complicate state and managerial efforts to curtail bullying in the workplace. The comprehension of these issues takes the discussion into the boundaries of philosophy and even psychology, as Guirdham’s (2002:189) observations detail.
“To avoid deluding ourselves that our own perceptions are always accurate, it helps to realise that people from different cultures, seeing the same piece of behaviour, may perceive, interpret and judge it differently. For example, East Asian cognition has been shown to be relatively holistic, that is, attention is paid to the whole. Western cognition, in contrast, has been shown to be object focused and control orientated.”
Organisations by their very nature, therefore, imply a certain sense of disunity and false imagery and are a discernibly post modern phenomenon. Much has been written about post modernism and the values of post modern society yet its influence upon the workplace has seldom been discussed. Michael Power (1995:110 111) sees the advent of post modernity, with its intrinsic ties to the laissez faire attitude of the governments of the West and the ideals of free market capitalism, as the key to the breakdown of communication in the contemporary workplace.
“Postmodernism is an assault on unity… postmodernism expresses a project of distantiation from various assumptions of unity implicit in the enlightened concept of reason. It is a process subject to considerable tension.”
In spite of the problems of definition with regards to bullying, harassment and even the workplace itself, the most significant point to remember is that the act should always be viewed through the eyes of the victim, both in the conceptual eyes of the adjudicator and, should it venture as far, from the erstwhile perspective of the law. Tina Stephens (1999:34), from the CIPD in Bristol, declares that, in cases where a tribunal is required to adjudicate, the onus is consistently on the recipient, who must be considered the central actor in the complaints procedure regarding harassment and bullying.
“The Employment Appeal Tribunal recommends that any complaint should be dealt with ‘from the perception of the person aggrieved’ but it is also important that individuals are not deemed to be guilty until proven innocent.”
It is this key fact that managers and recruitment staff must perpetually keep in mind. The process begins with the victim and can only end once he or she is happy that the matter is resolved. At this point it makes sense to pause to look at some of the reasons why bullying and harassment take place in the workplace so as to recognise the certain, typical characteristics involved - evidence that can be used to curtail their future growth within the corporate environment.
Literature review
The wealth of literature pertaining to bullying and harassment makes the task of citing references simple, yet also selective. Authors and analysts tackle the issue from a variety of standpoints: some see it from a psychological and sociological point of view, others concentrate on the effects on the workplace from a managerial perspective while others conduct surveys to ask the people on the front line what the reasons for bullying may be, enquiring also as to the effects of harassment on the human psyche.
While setting the conceptual framework for the study many of these sources and surveys will be cited and referenced. Some are the result of well funded independent, impartial bodies and authors, such as the CIPD and ACAS and the work of renowned British anti bulling campaigner Tim Field; some references are the consequence of extensive, very recent surveys, such as the impressive volume of work compiled by Einarsen, Hoel, Zapf and Cooper (Bullying and Emotional Abuse in the Workplace) and others are the result of the work carried out by academics who have been concerned with the need to marry a sense of harmony with a sense of duty in the workplace for many years.
Clearly, books concerned with the implications of sexual harassment are likely to be older and more in depth than studies pertaining exclusively to bullying. A dissertation on bullying to take place in five years time may reveal a patently different truth with the topic receiving more attention via excessive media exposure and an increasingly litigious UK cultural climate but, at present, the terms, ‘harassment’ and ‘discrimination’ receive far more in the way of literary attention than does the paradigm of workplace bullying. Abuse of this variety remains very much a psychological topic with much of the data still pertaining to childhood bullies, though admittedly with an increasing awareness in journals and, gradually, in academic books of the enormity of the scale of the problem of adult bullying.
What should be borne in mind throughout the dissection of the literature is the inconclusive nature of data and findings regarding surveys. The research of one analyst may be markedly different to another. Much depends on the type of questioning utilised by the researcher and the types of organisations and people who have been interviewed in the process. As a primary piece of data, surveys must be treated with caution. Clearly, no one conclusion can be drawn after citing such a myriad of literature; the authors themselves would be just as keen to stress this important point.
However, these factors have been taken into account prior to the formulation of the tables and facts quoted within the dissertation. Bullying and harassment in the workplace appears to be a markedly different phenomenon from other business and law studies topics because all of the books analysed within the study came to the same conclusion: that the problem is rife and is, at present, woefully under managed.
Therefore, the selection of certain quoted materials over others has been due to mitigating factors as opposed to a desire to corroborate pre conceived notions with dubious fact. The more recent the study, the better as far as contemporary research permits and the works which concentrate more on relevant UK sectors are cited for their ideological allegiance to the core of the study: understanding why bullying takes places as well as analysing measures to combat its growth within the organisation.
Furthermore, with regard to the legal status of bullying and harassment in the workplace, the literature is, essentially, a series of accumulations of case studies, court cases and latest statutes. The issue is further complicated by the ubiquitous presence of Brussels and in the EU in the background. It should be noted that Westminster retains priority with regards to the introduction, implementation and observation of work related statutes in the UK, but EU directives must be cited for the purpose of looking at the problem from a broader perspective with the added significance of a singular European directive looming ever closer in both political and economic circles.
Because of the fluid nature of the study of bullying and harassment in the workplace the subject of literature review is ongoing, that is to say that it cannot end at any juncture. The subject stands outside of a singular business studies topic and, therefore, cannot be treated in the same rigid way as many business studies topics. There is no singular formula required to lead to a satisfactory conclusion. Business matrixes and solutions are irrelevant in a topic as far reaching as bullying. A glance at the bibliography will reveal books from all backgrounds: politics, history, economics, sociology, cultural studies, racial studies, human rights and, of course, law.
The overall legacy of this conglomeration of different academic studies is a need to begin the analysis from the conceptual standpoint: to decipher and devise the framework of the dissertation. The study will therefore follow along the lines of identification of the problem, analysis of the legal concepts of what constitutes right and wrong (as far as anyone is able to categorically determine any concept of right or wrong regarding bullying and harassment) and examples of how to tackle the problem both from within the organisation and from outside. The first step, then, must be the identification of the problem; having already attempted to define what the issue entails, attention must now turn to the reasons for its existence so as to identify ways in which to hem its flow within the organisation.
Reasons for bullying and harassment in the workplace
Bullying and harassment of one kind or another are as old as recorded history. Indeed, pre industrial society was built upon a hierarchical structure, which necessitated bullying and constant displays of force to keep the upper class minority in power over the majority of the poorer classes. The advent of industrialisation changed forever the working climate in the western world as seasonal work was substituted for year round manufacturing and production, which required a new managerial class to get the maximum output from their workers. To some extent, this Victorian notion of employer and employee has never disappeared. Certainly, many workers in 2005 would draw comparisons between the industrial tycoons of the nineteenth century and the twenty first century corporate equivalents. What have changed are the British legal system and the perceptions of the masses that make up the UK workforce.
Furthermore, the culture of workers’ union was borne out of this industrial age of Marxist struggle. Unions will be discussed in more detail when the discussion turns to the legal aspects of bullying in the workplace but the important point for managers and recruitment personnel to bear in mind because the initial left wing mentality of the traditional unions remains in 2005. If a lower level worker (which the majority of harassment cases involve) files a complaint against a manager or executive level employee the unions will offer more solidarity to the worker: it is at the very core of their ethos.
In addition, it is important to recognise the genesis of the modern workplace because certain characteristics of bullying and harassment exist as direct results of the legacy of the industrial age; barriers cannot be broken without first recognising from where they originally came: bullying and harassment are endemic in modern British society. Moreover, with the consolidation of capitalism in the second half of the twentieth century, the central theme of profit and commerce were secure in the ideology of corporate business in the UK, as Craig Smith and Quelch (1993:4 5) ascertain.
“Business people sometimes argue that ethical issues are not and cannot be the concern of business, that business has a different function, which would be undermined by ethical issues… in short, being ethical does not pay, and it conflicts with the functions of a firm in a capitalist society.”
Indeed, this truism is the starting point for harassment in the modern workplace and office: the ubiquitous pursuit of profit. And, as Anne Dickinson (2000:137 8) attests, the ideological link between bullying and capitalism makes exposing its historical and cultural roots a difficult experience.
“Permanent inequality in a fixed linear direction means that hierarchical power dominates. Those above have more power than those below; they have greater access to various resources and higher remuneration. The higher the position, the more valued the work: directorial/managerial responsibility is given higher kudos than administrative/clerical responsibility. The sole goal is financial: the more, the higher the profit, the better. Ever increasing profit becomes the only yardstick of success. Goals are achieved by competition and battle waged by fair means or foul. Aggression is therefore the sanctioned and primary mode of behaviour. Ruthlessness and bullying are acceptable as the means of eliminating competition.”
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This is, of course, not a recent phenomenon. Feudal landlords of the middle ages demanded the same of their workers to increase crops and encourage profit; rather, it is the uniquely post modern emphasis on workplace pressure which marks the contemporary office as unique from all that has come before it. The impetus for cultural change was the result of government ethos in the UK during the 1980’s that was structurally and economically laissez faire, incorporating a policy of minimal intervention by the state in the private sector with the public sector famously subjected to intense state scrutiny and privatisation. As will be proved, the transition from a Conservative government to New Labour has altered little in terms of the prevailing context of contemporary British capitalist philosophy.
Furthermore, the decline of the manufacturing and textile industries in the UK has added further emphasis to the significance of the corporate marketplace and placed greater importance on job retention. The culture of ‘a job for life’ has been forcibly removed from British society, which has served to create a much greater atmosphere of fear with regards to keeping a job, located within the context of an inexorable drive for capital amid a discernibly Darwinist corporate agenda of survival of the fittest. It stands to reason that the fear felt by many organisations and SME’s in the UK would be transmitted to the workers who, in turn, resort to competing with one another in the work environment in an ethically and morally bankrupt manner.
It is an accepted fact that fear is at the heart of all forms of bullying. Fear is generally lodged within the mind of the perpetrator who is unable to express his or her feelings in a rational manner. The fear of losing a job is tied intrinsically to fears pertaining to home, family and well being. It is little wonder, then, that some of the more delicate psyches snap under the collective pressures that many workers find overwhelming on a daily basis, a fact that is underscored by Shay and Margaret McConnon (2004:70 1).
“Anger that is not dealt with can turn inwards and leak out in resentment, bitterness, withdrawal and repression. Suppressed negative feelings can damage your health. While it is easy to suggest you describe and express your anger in a positive way to the relevant person, experience may have taught you it is expedient to settle for surface peace as the lesser of two evils… Conflict is often high on emotion and low on reasoning.”
As well as high pressure jobs, bullying and harassment in the workplace are further fuelled by racial, gender and, to a lesser extent, class prejudices that have only been airbrushed since the laws bequeathed by the neo liberal governments of the West during the 1990’s. Traditional prejudices are visible in 2005 in both the public and private sector, as a recent press release from the Welsh branch of the Commission for Racial Equality website (cre.org; 27/06/2005) brings to light.
“Three years on from when they should have been, none of the key public bodies in Wales are properly meeting one of their fundamental duties under the Race Relations Act, the Commission for Racial Equality announced today. Of forty three key bodies surveyed - all local authorities, all NHS Trusts, the three fire services and four other public bodies - none were able to demonstrate that they were fulfilling the specific duty on employment set out in legislation four years ago. The duty set a starting deadline for these bodies to be conducting effective ethnic monitoring of their employment practices from 31 May 2002. Five bodies have still failed to reply to the CRE, despite a clear warning of potential compliance.”
The effects of the poor performance of companies in Wales and throughout the UK in relation to hiring people from ethnic backgrounds is a concern for harassment and bullying in the workplace for a variety of reasons. First and foremost, the Commission for Racial Equality is propelled by British law. To openly ignore government policy, especially within the public service sector, sends an unhealthy signal to both managers and employees across the country. If managing directors and board level executives are unwilling to recognise the shift in focus that has taken place with regards to workplace behaviour during the past fifteen years and the laws that underpin them then it stands to reason that potential bullies are less likely to concern themselves with the legal implications of their negative domineering actions either.
Furthermore, the issue regarding the number of ethnic employees in the UK – specifically the continuing lack of diversity in the workplace – only serves to hinder attempts at reconstruction and office harmony. Society can only move forward in a more inclusive manner if it is exposed to the full range of diversity prevalent within the country. Obviously, regional differentiations render efforts to reach a conclusive statement on the proportion of British ethnic employees problematic. London, for instance, is a truly multi¬cultural hub of employment activity while provincial areas such as the North East are cut off entirely from this experience and are less integrated in terms of ethnic figures and racial equality. However, the fact remains that, over fifty years since the opening up of British immigration and borders to include citizens of New Commonwealth countries, the corporate world and, to a lesser extent the public sector, does not truly reflect the cultural and sociological changes that have beset the country since then.
In addition to the problematic issue of ethnic numbers in the British workplace, there remains, in 2005, a considerable discrepancy between remuneration packages between male and female workers, which serves to cultivate a burgeoning sense of resentment amongst women in the workplace. Female mangers and executives of larger organisations still earn a noticeably smaller amount than their male equivalents, which, as Catherine Herbert (1994:72) attests, is a catalyst for workplace bullying and harassment.
“The misconception about sexual harassment comes from an assumption that women and men have equal power in the workplace. Not only is that untrue (women earn 67 per cent of men’s wages and only occupy approximately 3 per cent of senior executive positions), but also it is hardly fair to expect the recipient of sexual harassment to take responsibility for unwanted behaviour.”
Inequality in the workplace leads the small percentage of female employees who manage to achieve executive or managerial level to develop a kind of siege mentality whereby they work in fear of being usurped or pushed about the male majority. Furthermore, typically, female bosses will have had to have led particularly dedicated lives in order to attain their career goals. In terms of personality types, therefore, these ambitious women would tend to fit typical bullying characteristics. Instances of female bosses abusing female employees have been on the increase and are a direct legacy of the male centric ethics of business in the UK; as Campbell Quick et al (1990:105) ascertain in their profile of the modern female executive: “evolutionary change is a slow process.”
According to organisational psychologist Mary Sherry (Personnel Today website, first viewed 03/02/05), female bosses are every bit as domineering as their male counterparts, especially towards female employees in their charge.
“Cases show that female bullies rarely match stereotypical images of aggressive bullies who use physical intimidation and foul language to cower their victims. Their approach is a lot more subtle and psychological. They nitpick and undermine through constant criticism which leads to those on the receiving end losing their self-confidence and becoming risk and responsibility averse.”
Despite the advances of British society’s view of homosexuality, the issue of sexual orientation remains an acute problem for both private and public sector employers alike. Figures detailing this form of harassment (which is often amongst the most severe witnessed in a work environment) are notoriously vague because, as Ishmael (1999:41) describes, the stress and stigma of sexuality means that many members of the workforce are never secure enough to reveal their true identity.
“It is not surprising that a large number of gay men and lesbians decide to ‘stay in the closet’ and not reveal their sexuality at work and not least because sexuality has nothing to do with a person’s ability to do their work but also because of the forms of harassment and bullying gay men and lesbian women will inevitably have to put up with. Being one about one’s sexuality should be a matter of choice, and one which can be made freely without the fear and threat of losing a job, destroying a career, verbal and physical abuse and violent attitudes.”
In addition to racial, ethnic, gender and sexual inequalities within the context of a high pressure corporate environment, a lack of procedure in many places of work renders any attempts at deterrents for prospective bullies obsolete. The necessity of introducing policies to combat harassment before it has begun will be discussed in the second half of the dissertation but the absence of policy and awareness within the workplace is certainly a factor in the continuing cases of abuse being reported in the corporate sphere.
It can be seen how British workplaces at the beginning of the twenty first century, in both the private and public sectors, are acting as an obstacle to the ideological, surgical removal of harassment and bullying by not adhering to relevant domestic laws and continuing a broadly anachronistic view to management. Thus, what analysts have found in the vast majority of modern British workplaces has been a ‘macho’ culture, a direct descendent of industrialisation backed up by a dominant managerial attitude. And, much as anti alcohol forces are currently discovering in twenty first century Britain, deep seated culture is beyond the force of the law. Put simply, it will take more than legislation to stop young Britons binge drinking in the same way as it requires more than Westminster and EU directives in order to put an end to bullying and harassment in the contemporary workplace.
Yet, despite all of the ingrained prejudice still prevalent in British society at large, there exist many cases of harassment and bullying that take place for no discernable reason at all. The recipient may be of the same age group, social class, ethnic origin, sexuality and gender as the perpetrator yet the affect remains the same. Reasoning behind this kind of bullying is a layered tapestry of psychological profiles and individual dynamics within any given particular working environment.
For instance, a previous target for the office bully might have left the job, leaving a vacant objective for the bully’s projected abuse. Alternatively, a colleague at work might find themselves the subject of bullying because they stood up for the previous recipient, who may still be employed within the organisation. In many cases the motive for the abuse is because the recipient is a competent member of the team, touching upon the deep rooted aspect of fear as previously mentioned. Furthermore, the tenuous corporate culture of the early twenty first century has made job retention much more of an issue and has served to increase cases of worry and stress related harassment. According to data collated by Andy Ellis of Ruskin College, Oxford (workplacebullying.co.uk; first viewed 02/07/05) the chief reason behind seemingly unprovoked bullying is the arrival of a new manager to the team, triggering off anxiety and fear within the workplace bully.
Reason for bullying in the workplace No. of cases As %
Arrival of new Manager at store 10 45.5
New work practices 4 18.2
Promotion of new Manager 1 4.5
Manager avenging reprimand 1 4.5
Worker simply not liked by Manager 1 4.5
Manager suffering from stress 1 4.5
No Answer 4 18.2
Total. 22 100.0
At this juncture the issue becomes more a question of sociology and psychology than law or business studies. Certain characteristics are recognisable in bullies from an early age and, once instilled they are difficult to remove without the help of sustained counselling. More obvious cases of overbearing personalities ought to be discovered during the recruitment process but rarely does the instance arise of a bully not covering his or her psychological tracks during interview. A study of the effects of bullying and the cost to the organisation is now necessary before turning attention towards the legal framework within which bullying and harassment operate.
The economic and human costs of workplace bullying and harassment
Tim Field (1999:9) explains the psychological effect of bullying upon the recipient: “if (bullying) is aggression expressed psychologically rather than physically – it’s harmful. It can be more devastating than a physical injury and is compounded by denial and unenlightenedness.”
Though the motives may be subtly differently, the effects of bullying in the workplace are much the same as the effects of teasing and bullying in the playground. Rather, the effects of workplace bullying may be even more harmful. As adults, it is presumed that conflict can be overcome by merely facing up to the individual. Surely, it is presumed, the collective experience of school and adolescence teaches us to resolve disagreements and to transcend ‘difficult’ people. For an adult, having to resort to making a complaint because another member of the organisation is overbearing can be embarrassing to the point of inaction.
Victims also fear that the person to whom they wish to file the complaint against would ridicule them for not being able to settle the matter without recourse to a third party. Moreover, in many cases, the person to whom the victim ought, logically, to be making the complaint to is, in fact, the very person who is inflicting the suffering in the first place. Line managers are the first point of contact in a great many organisations and if this person is the bully, the issue is complicated further. Authority, it will be shown, is frequently misinterpreted as integrity.
Karen Charlesworth (1996:112) charts the responses to her study of the effects of stress in the workplace including the psychological residue of pressure and capitalism to reveal a snapshot of the grief inflicted by harassment.
Base: all respondents Not at all
(%) To some extent (%) To a great extent (%) Do not know (%)
Effectiveness at work 12 65 21 2
Health 11 58 29 2
Morale 11 47 41 2
Relationship with partner 12 58 28 2
Relationship with family 17 59 22 2
The symptoms felt by the recipient of office bullying therefore appear the same as those which affect sufferers of depression with over a quarter of respondents believing that stress at work has greatly affected their relationship with their partner, which shifts the debate from the public to the private sphere. Clearly, de motivation is the first subconscious expression of bullying by the victim during working hours. This will be accompanied by a discernible increase in sickness and absence. These are only the visible effects detectable by colleagues. Outside of the office, the effects of bullying on the victim are much worse and are akin to suffering symptoms of post traumatic stress disorder. In the most extreme cases the recipient may irrevocably split from a partner, lose their home, children, livelihood, and perhaps even their life. Peter Randall (1997:105) cites a case study of his where the end result of an instance of workplace bullying was suicide.
“Twenty seven year old Greg Roberts committed suicide two days after his son’s birthday. His widow, Jane, recalled how he had endured two years of misery at the hands of his Departmental Manager, a tough, abrasive and bullying woman who called him ‘No Balls Roberts’ whenever no one else could hear. The young accountant had twice complained to the Personnel Manager for the area, who refused to believe that the Departmental Manager would bully anyone. Greg was described as ‘a complaining, neurotic man prone to attention seeking’ on his personnel records. That was the end of his promotion and deployment chances. In desperation, Greg left the firm and tried to go private. He failed, became very depressed and gassed himself in his car.”
ITV News recently ran a week long awareness campaign with regards to the broader subject of bullying and its effects on victims, highlighting the increased exposure that the topic is generating in the popular media. HTV Wales News (30/06/05) interviewed the recipient of the principality’s largest ever corporate pay out for bullying in the workplace, Mr. Powys, a teacher from Skewen just outside of Neath who was awarded over £200 000 compensation by an employment tribunal in 1997. Mr. Powys cited a campaign of constant harassment on the part of his head teacher, who, he said, would sit in on classes to undermine him and send abusive letters and e mails. Mr. Powys spoke of the bullying “eating away subtly” at him and “destroying confidence.”
Moreover, he estimated that up to one third of all teachers suffer bullying at work but he underscored the fact that many are too embarrassed to take action. This is a theme that will be repeated throughout the dissertation: the cases of bullying and harassment that are made public are very few and the incidents of internally filed reports are only a small percentage of the true state of affairs in the contemporary British workplace, as Tina Stephens (1999:3) corroborates.
“Cases of harassment that reach the public eye through the media are usually those where a tribunal case or national survey has elicited the revelation of graphic, sometimes sensational, detail. These, however, are only a very small tip of a very large iceberg. Organisations that conduct their own workplace harassment surveys are few and are usually shocked by what they discover. Bullying is not always a sudden outburst of temper resulting in a one off instance of verbal or physical abuse. It is persistent and frequently includes the misuse of power gained from the bully’s status in the organisation. It may be hidden from public view, though more often it would seem to involved acts of public humiliation.”
Certainly, the effects of abuse and harassment cannot be overcome in the short term. The victims of workplace bullying often take many years to recover from their experience, some never returning to work at all. The cost to the state is difficult to gauge and ought to be more of a central concern for government administrative authorities. The CIPD offer a figure of 80 million working days lost each year as a result of bullying, while Tim Field (bullyonline.org) estimates the financial cost to be in excess of £1000 hidden tax per working adult per year measured out in absenteeism and sometimes acute illness as a consequence of harassment in the workplace.
“Estimates of the cost of stress and stress-related illness range from £5 billion (TUC) to £7 billion (IPD) to £12 billion (CBI) each year (that is around £500 each year for every working adult).”
The cost to the private corporate world can be more accurately estimated and its effects are damaging, both in financial and personnel terms. Shay and Margaret McConnon (2004:18) attempt to put a figure on the cost of bullying to a typical contemporary company.
“Conflict not only has a high personal cost but it is expensive for your organisation. Research indicates that a typical manager loses 25% of the day responding to unhelpful conflict. This is time lost to creative, productive work. Take a medium sized organisation with one hundred managers. Lets assume the average annual salary per manager is £40 000. With managers losing 25% of their time on conflict, the cost will be £1 000 000. This only accounts for the management team. The true cost will include wasted employee time, higher staff turnover, missed opportunities, absenteeism, inefficiency, low morale and poor teamwork.”
Despite these estimates there are no exact figures as to the overall cost to the UK economy bequeathed by bullying and harassment in the workplace. What is certain, however, is that estimates are only the beginning of the cost for the organisation. These costs do not include the considerable legal fees required for the small number of cases that make it to courts or tribunals. Field (bullyonline.org) estimates the legal costs to be at least £1 000 to the organisation per stage of the litigation process – a course of action that traditionally involves three legal phases.
“Employment tribunals will cost in excess of £10 000 per stage and may cost up to £1 000 000 if sex or race discrimination is involved. Tribunals can occupy three stages: pre-hearing review, employment tribunal, appeal tribunal. Employment tribunal proceedings may last several days but adjournments, delays and overruns may be spread over 1-2 years.”
Field adds that a county court action (where the personal injury appeal is less than £50 000) the organisation can expect to foot a £50 000 bill while enduring, typically, three years of litigation. In cases that reach the High Court (a personal injury claim over £50 000) the cost to the company will be at least £100 000 and may even exceed one million pounds involving up to five years of court appearances and legal red tape. These are considerable sums and do not take into account the incalculable damage to reputation that any firm would experience as a by product of a court case for bullying or harassment.
Following on from the startling revelation of the costs of workplace abuse, a detailed analysis of the legal background of the effort to combat bullying and harassment at work is necessary before turning attention to analyse how specified instances have been deemed to be a breach of employment law, setting the precedents by which the contemporary British business culture judges right and wrong.
Research methodology: the legal framework pertaining to bullying and harassment in the workplace
Researching ways in which managers can prevent the flow of bullying and harassment in the workplace is a legal task. Without an in depth knowledge of the legal framework in relation to the topic, efforts at preventing the effects of bullying and harassment are rendered obsolete: the problem must be tackled at the conceptual root which necessitates knowledge of the latest legal statutes as well as understanding the nature of the legal framework. This is a key point and a mistake made by many businesses across the country. Too many managers think they know the laws and, therefore the boundaries, of acceptable behaviour at work without comprehending why these exist, without studying their historical and cultural genesis. This chapter deals with just such an issue, highlighting how laws and statutes have come to mean a greater shift towards the true empowerment of the employee and how these measures come not from a group of corporate moguls but, instead from the most authoritative law making body in the country: Parliament.
The 1975 Sex Discrimination Act was passed by Westminster as a direct result of non governmental group pressure exerted by feminists. They adopted the same equality struggle as the Catholics had done so successfully in Northern Ireland with women at work in mind - women who were performing the same roles as their male counterparts while receiving substantially less in wages.
The 1975 Act covers both ‘direct discrimination’ (less favourable treatment of women than men in the workplace) and ‘indirect discrimination’ (when an unnecessary condition applies equally to both men and women but, in reality, affects more women than men). Subsequent amendments to the statutes pertaining to sexual discrimination in the workplace have established the principle of ‘burden of proof’ to deal with the increasing number of complaints over indirect sex discrimination. As Rubenstein (2005:46) explains, using the example of Nelson versus Carillan Services Ltd., the latest instalments ensure that indirect discrimination is a hard case to prove beyond all reasonable doubt.
“In a claim of indirect sex discrimination, the effect of the amendment made to the Sex Discrimination Act by the Burden of Proof Regulations is to codify rather than alter the pre existing position established by the case law. The burden of proving indirect discrimination was always on the complainant and there it remains. The complainant still has to prove facts from which the tribunal could conclude that he or she has been unlawfully discriminated against, ‘in the absence of an adequate explanation from the employer.’”
This is a particularly important point: very few cases of sexual discrimination in the workplace are ‘direct’ – when an employer is willing to admit liability. The consequences of the burden of proof and the general principles of indirect discrimination will be dealt with while analysing managerial strategies to investigate complaints of bullying, though clearly, like so much else in the study, attempts at clarifying the issue have only served to further shroud it in ambiguity.
It should also be noted that the 1975 Sex Discrimination Act likewise deals with victimisation in the workplace – for instance, when a female employee is treated less favourably as a consequence of making a complaint within the legal framework of the Act. The legislation also applies regardless of length of service or number of hours worked per week and the Act permits the recipient to take to the case to an employment tribunal should the situation arise. Furthermore, the Act covered ‘gender re assignment’ as well traditional male female forms of sexual harassment in the workplace. The Sex Discrimination Act remains the legal cornerstone of modern variations and updates and is the single most important law within the confines of this study.
The Protection from Harassment Act (2004) was conceived with stalking in mind, not the plight of harassed women at work. The popular media have played a significant part in its passing and, likewise, the media are responsible for making the legal bounds of an employment tribunal more blurred. With each sensationalised case that inevitably concentrates on only the ‘juicy’ and sexual details of the incident in question, the stakes for both the employees and the organisation are raised to another level. Crass media coverage has mad a marked effect on the portrayal of sexual harassment in the workplace as well as further confusing the definition of sexual harassment in the eyes of both men and women.
For instance, the recent high profile case of Faria Alam versus the Football Association (The Telegraph newspaper; Wednesday 22 June, 2005) shows how the more stringent set of laws pertaining to behaviour at work has created loopholes through which certain unscrupulous employees are able to climb through without suffering anything like the level of harassment for which they are filing.
“Faria Alam alleged that she was harassed on a number of occasions by David Davies, the former FA director of football affairs and her immediate manager. She claims that Mr. Davies, who had a reputation for ‘trying it on’, made ‘unwanted physical overtures’ towards her, attempting to hug and kiss her in his office and seduce her in the lift. Miss Alam’s allegations emerged from an Employment Tribunal in which she is claiming constructive unfair dismissal, sexual discrimination and breach of contract… She resigned and sold her story for a reputed £300 000 after taking advice from the publicity agent Max Clifford. In a Radio Five Live interview, she said that Mr. Davies had been a ‘fantastic boss’. No mention of harassment was made until the hearing yesterday.”
The upshot of cases as above (which has not yet yielded a resolution) has been to retard the progressive manner of the broader women’s movement and drives for equality in the workplace. The consequences are two fold: on the one hand, men and male managers are re enforced with the view that hiring women can be extremely dangerous, both personally and for the organisation. Typically, as a counter reaction, male co workers and managers tend to disassociate further from women members of the team so as not to send out any confused or mixed messages. Thus, teamwork and workplace morale suffer as a result of excessive media exposures of the threat of litigation.
On the other hand, adopting the viewpoint of the women who make up such a large quota of the British workforce, the belief of a ‘support’ role at work is further entrenched. In 2005 it remains true that women tend to constitute the majority of staff at customer support and call centres, in administrative roles in the office and clerical occupations across the country transcending a wide range of industries and businesses. Stagnation of the considerable strides made by female executives during the 1970’s and 1980’s is another unwanted by product of contemporary Britain’s undeniable obsession with sex; the issue of the popular portrayals of sexual harassment cases in the UK are, therefore, compounded by powerful cultural and sociological norms.
The following year, 1976, witnessed the passing of the Race Relations Act in the UK which followed along broadly similar lines to the Sex Discrimination Act in terms of equal opportunity for all races in the sphere of employment as well as the establishment of a set of ideas that constituted right and wrong in the workplace. As O’Grady et al (2005:622) ascertain, the most recent research regarding racism points to the responsibility of the state (and therefore of the organisation as a microcosm of the state) in positive attempts to expel racist attitudes from the workplace.
“Racist attitudes and behaviour can be held or expressed by individuals but racist processes cannot. Processes are external to the individual; certainly their construction and composition is always due to the actions of individuals, but processes can precede actions and agents who at a later stage will work within and with them.”
As a result of the 1976 Act ethnic employees are permitted by law to take cases outside of the organisation to tribunals citing discrimination on racial grounds, criminal harassment and inciting racial hatred. The Race Relations Amendment Act (2000) updated the legislation further to incorporate the principles of Article 13 – proposals from the European Commission for combating racism – of the Amsterdam Treaty (2000), which was itself an amendment to the Treaty of Rome, the foundation upon which the EU is legally constructed.
Article 13 is not concerned only with prejudices pertaining to race but also discrimination directed at individuals in relation to their age, sexual orientation, physical ability, religion or beliefs. The Article, which is quoted from the Commission for Racial Equality’s website (cre.gov.uk, first viewed 01/07/05) outlines the following principle to combat harassment.
“Without prejudice to the other provisions of this Treaty, and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission, and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”
It is imperative to note that the general principles of Article 13 are not legally binding. They are a framework within which to springboard two proposed pieces of legislation - minimum standards of legal protection against discrimination throughout the European Union and an Action Programme to support practical efforts in the member states to combat discrimination - that will encompass every state within the Union. This remains a discussion that takes place within the realms of theory as opposed to practice.
In 1996 the Disability Discriminations Act was passed by parliament with the same focus of its sexual and racial predecessors twenty years beforehand, the motivation being the cost of disability to the state, which had increased threefold since 1974, creating a sense of dependency and alienation, as Glennerster (2001:391) explains.
“The disabled wanted to work and be part of mainstream society. Incentives not to work had become part of the benefit system. They had to be removed and disabled people helped back to work if at all possible.”
The question of discrimination and harassment on grounds of disability is fraught with ambiguities and differentiations of perception. Much of the discrimination levelled at disabled members of the workforce is due to the inevitable staring, whispering and altered body language that able bodied members of the organisation display towards disabled members of the team. Therefore employment tribunals and managers alike must bear in mind the specific subconscious nature of harassment and prejudice relating to disability. Yet it is also a fact that many disabled people are less likely to take offence to such minimal gestures as it is, lamentably, a phenomenon that takes place in the public as well as the corporate sphere.
Legislation is in place regarding discrimination based upon age (the EU deadline for member states is 2006) as well as religion, which is an issue that is increasingly significant in light of the precarious political state of affairs in the Middle East. It is important to recognise the wall of silence that surrounds religious, ethnic and racial discrimination; few organisations wish to acknowledge its presence which necessarily curtails efforts at its expulsion.
Indeed, since late 2003 there have been statutes introduced to deal with discrimination and harassment and bullying on the grounds of sexual orientation and religious belief, as the following excerpt from the Department of Trade and Industry website (dti.gov.uk; first visited 09/07/05) explains.
“New equality legislation outlawing discrimination on grounds of Religion or Belief and Sexual Orientation in employment and vocational training came into force in December 2003. The introduction of this legislation, The Employment Equality (Religion or Belief) Regulations 2003 and The Employment Equality (Sexual Orientation) Regulations 2003 is a major step towards tackling unfair discrimination.”
Increasingly, sexual orientation is an issue that managers need to be extremely wary of. As UK society and, crucially, the popular media, begin to break down the prejudices and stigmas attached to homosexuality, so the general public and workforce begin to awake to the harassment that has taken place for decades unpunished.
Essentially, all legal corners regarding ‘traditional’ discrimination are covered by legal definitions and EU directives in the UK, including sexual orientation and political convictions. Yet common sense and the law make awkward bedfellows; rarely does one see the same perspective as the other. The cumulative result of the initial legal framework regarding harassment in the workplace is recognition of the problem without a solution. Yet at least harassment is covered by law. As Gillow et al (2003:107) point out, that is a logical and legal step further than the issue of bullying in the workplace.
“Unlike sex, race and disability discrimination, there is no specific legislation outlawing bullying. Unless is on the grounds of race, sex or disability (or soon sexual orientation, or religion or belief), therefore, a bullied employee cannot bring a claim to an employment tribunal unless he or she resigns and brings an (unfair) constructive dismissal claim. Employees generally need one year’s qualifying service in order to bring a claim of constructive dismissal.”
Clearly, legislation depends upon the party in power; as such an analysis of New Labour’s employment and social reforms is necessary to view the contemporary cultural framework in addition to attempting to view where future boundaries of harassment, bullying and dismissal in the workplace may lay.
Tony Blair came to power amid a famous slogan of Labour representing the ‘Third Way’ of British politics. This aimed to create a more socially inclusive and egalitarian society while remaining focused on the principals of free market capitalism, namely a continuation of minimal intervention in the private sector. Commentators, such as Cressey (1999:171) have found Blair to be too laissez faire in his approach to employment law and employee relations, passing too much responsibility to the local and regional authorities. “In general it appears that the Labour government has gone for a minimalist approach,” he concludes.
Ellison (1997:53), writing at the time of Blair’s first term in office, during the period when the majority of social and employment legislation was passed, defines the core ideology of New Labour in terms of constructing a more economically powerful United Kingdom.
“What has emerged is a dual strategy, one part of which elevates economic stability above all else as the essential platform for sustained growth; but the other part of which stresses the potential for the creation of a more organic sense of society and social obligation as meeting the needs of both society and individual – the spirit of the idea being encapsulated in Blair’s phrase, ‘social advancement and individual achievement.’”
A paradoxical state of affairs has thus emerged whereby the government has at last recognised the need for a psychologically stable and healthy workforce at the same time as embracing a sharp rise in intensification of work across the European continent. With a rise in pressure and stress it seems impossible that the government’s proposals to reduce bullying in the workplace can succeed, regardless of legislation introduced.
New Labour, as all other western European states, have been influenced by the EC Recommendation and Code of Practice on Protecting the Dignity of Women (1997), which provided a manual for managers in terms of combating bullying and harassment in the workplace, as Farnham (2000:419) ascertains. Article 1 of the code introduces the EU’s stance against “unreasonable and offensive” behaviour which creates an “intimidating, hostile or humiliating work environment for the recipient.” Article 2 requires member states to enforce the principle by creating a “climate at work in which men and women respect one another’s dignity.”
The passing of the Human Rights Act (1998) likewise offers an indication of the increased desire to protect individuals from the mechanisms of the modern office and workplace. The Act established the paradigm of ‘informed consent’, which is the key to any citizen’s ability to make their own evaluations about unlawful or abusive behaviour. The Human Rights Act is significant because previously there was no such recourse for harassed citizens in the UK without resorting to European courts in Strasbourg. As Peter Villers (2001:25) explains, the Act is a gauge of where, ideologically speaking, both New Labour and modern Britain are heading in terms of the basic protection of human rights and personal dignity in the workplace.
“It creates the possibility for the constitutional criticism of Acts of Parliament by the judiciary in that they are conceived to be incompatible with human rights. And it has been declared by the government itself to be the beginning of a process of creating a human rights culture in the UK – a culture that the government wishes to see develop. To that extent, it could be described as a revolutionary act, if a very quiet one.”
Two high profile law cases during the 1990’s can be cited as evidence in terms of the shifting boundaries between acceptable and non acceptable behaviour in the workplace in the UK. In 1997, the case of Jones versus Tower Boot Co. Ltd. established the principle that the employer is responsible for the actions of employees within the place of work, unless the actions of the accused go clearly beyond the employer’s control.
The case of Burton versus De Vere Hotels (1996) declared that the employer should be held directly accountable for harassment which could be controlled. Complaints must be taken seriously by managers who must, in turn, undertake a thorough investigation to avoid a breach of contract.
Although these landmark cases set precedents by which future employment cases have been settled, the legal grey area remains problematic for managers and employees alike. Not only does the issue of what constitutes managerial responsibility remain shrouded in ambiguity but, likewise, the question of whether the accused was aware of his or her actions is not properly dealt with either. Managers cannot control members of staff who are not even aware that their actions are causing offence in the first place. Only through education and training can managers begin to evolve so as to use all of their experience and professional intuition to recognise the potential for discord within his or her team.
The divide between the public and private spheres ought to be emphasised at this point. While the government has little influence upon the private sector in real terms, it has a far greater impact on the public sector; indeed, the government has a duty to see to it that bullying is seen to be tackled in public companies as the two organisations are intrinsically linked in the eyes of the voters. With this context in mind, the Blair Government has given the Amicus trade union £1 million to conduct research into the causes of bullying and harassment in the British public sector.
A BOHRF study disclosed that Royal Mail had a particularly poor track record of bullying in the workplace, highlighted during a Channel Four documentary on the British postal service, which portrayed a typical workplace rife with discrimination, harassment and bullying. In January 2003, with the assistance of Amicus, Royal Mail chairman Allan Leighton unveiled a campaign to stamp out bullying among the 200 000 workforce, including a twenty four hour bullying helpline set up to help victims of bullying as well as installing a ‘crack squad’ of harassment investigators. A Royal Mail spokesperson told the BBC Business News website (first viewed 02/07/05) that, “ending bullying brings huge advantages for us; it should reduce absenteeism and boost productivity. Above all, creating an environment of respect helps make us a good place to work.”
Bullying was likewise found to be particularly prevalent in the police force, prison service, health service and teaching professions and the government has taken an active interest in the expulsion of harassment in all of the public sector occupations. With regards to the private sector, though, New Labour has found its hands tied yet, as already touched upon, the most significant piece of legislation pertaining exclusively to the broader effects of bullying and harassment in the workplace has been the 1996 Employment Act, which provides that employees may not be unfairly dismissed.
Constructive, unfair dismissal is the most likely scenario facing managers and organisations who find themselves accused of bullying or harassment in the workplace. Making sure that managers and the firm are up to date on the latest guidelines regarding unfair dismissal is a key feature in avoiding lengthy, costly employment tribunals and legal fees.
Poor performance at work, improper conduct and redundancy are the chief reasons for dismissal – proof of these misdemeanours ensures an employment tribunal will rule in favour of the organisation. Yet, as Yamada (2003:402) explains, the unfair dismissal route is the path most frequently trodden by aggrieved ex employees who are then able to use the platform of a tribunal to detail instances of harassment and bullying against the employer.
“Of particular relevance to bullying is the concept of ‘constructive dismissal’. An employee is constructively dismissed when she voluntarily leaves her employment because the employer has fundamentally breached an express or implied term of the employment contract. Subjecting an employee to severe mistreatment can be a form of breach of an implied contractual term. Accordingly, an individual who leaves his job because of bullying could claim that he was constructively dismissed, and seek relief under the statute.”
Three cases serve to underscore the significance of the constructive dismissal procedure for ex employees. In 2000, the case of Abbey National PLC versus Robinson upheld a previous decision of the boss bullying a female employee into untimely resignation. Storer versus British Gas (2000) cemented the concept when an appeal court re instated a case of constrictive dismissal after the complainant failed to file his grievance within the statutory time limit. And in 2000 Ezekiel versus The Court Service held that the employee was correctly dismissed under the provisions of the Employment Rights Act for the reason that he engaged in severe bullying and mistreatment of co workers. It should be noted that, if the employee is a trade union official, then he or she must not be dismissed without first discussing the matter in detail with a senior trade union representative otherwise the tribunal are more than likely to deem the investigation “unfair.”
A very recent, high profile case has highlighted how tribunals may award compensation for one experience of workplace abuse while rejecting another instance in the same hearing, both charges coming within the bounds of constructive or unfair dismissal. Art teacher Sarah Forsyth, tutor of Prince Harry at Eton, recently won a case in front of an employment tribunal for unfair dismissal. The Daily Mail (Tuesday 5 July, 2005:19) reported that; “yesterday Eton welcomed the tribunal’s judgement, which also dismissed Miss Forsyth’s claim that she was a victim of sexual discrimination… the tribunal, in Reading, found Miss Forsyth had been bullied by her head of department Ian Burke but dismissed her claims of cheating as ‘muddled.’”
The former teacher could receive the maximum compensation of £56 000 although Eton aim to appeal against the decision of unfair dismissal. As a result of the debacle, the college has been forced to implement new employment procedures in relation to harassment in the workplace though they concede that, even with a more stringent, up to date policy in place, Miss Forsyth would still, in all likelihood, have pursued a claim against her former employers.
Yet this instance is a high profile case. The truth is that many harassment and bullying cases are not resolved in a satisfactory manner for either the employee or the organisation. Indeed, all acts, statutes and laws will have serious difficulties penetrating the workplace. As Barnett (2000:316) claims, employment tribunals still have problems ascertaining what exactly qualifies as, “intimidation with sexual connotation.”
Therefore, attention must now turn to the procedures that organisations and managers can adopt to see to it that bullying and harassment are both curtailed in the workplace as well as polices to adopt in the event of a complaint being made by any member of the team.
Part II: the implications for managers
Data Findings: strategies to combat bullying and harassment in the workplace
The following chapter deals with case studies to show how the accumulation of data and findings regarding bullying in the workplace has led organisations, managers and independent bodies to the inevitable conclusion that, measures must be undertaken at once to stop the spread of the culture of harassment at work. The strategies devised to combat bullying necessitate a return to the legal aspects of the dissertation so that, in the event that an organisation finds itself having to dismiss an employee found guilty of harassment at work, managers are aware of the many legal pitfalls that remain un signposted long after the investigation process has come to a stop.
As discussed, the challenge for managers is to tread the tightrope between being aware of the presence of bullying and harassment in the workplace without being taken hostage by petty complaints and excessive sensitivity. Indeed, contemporary social analyst Frank Furedi (2005:13) argues that, “the inflation and trivialisation of bullying has turned virtually every peer to peer relationship which is stressful into an experience of abuse.”
While the UK law and statute making bodies continue to strive to find a safe middle ground (generally a consensus between the excessive litigation as witnessed in the USA and the more liberal ‘dignity at work’ programme as witnessed in Sweden) businesses must concern themselves with the ongoing battle to keep their enterprises afloat and, simultaneously, free from litigious distractions. US law is so centred upon the recipient of the harassment that the onus has been taken off the organisation to take responsibility for the action of its employees. That is not the case in Britain where the company must show a willingness to take control of the situation regarding bullying in the workplace if it wishes to defend its name in an employment tribunal. This means creating an environment which acknowledges the darker, more deep seated forces at work in the human psyche as opposed to devising a culture of suffocating rules and regulations. In addition, the forward thinking manager will consider the fact that no workplace or office can ever truly be termed ‘harassment free’ yet also that this realisation does not mean that measures cannot be taken to rein in its coverage.
The logical first step for any organisation to adopt to combat bullying is to create a policy detailing acceptable standards of behaviour in the workplace. In October 2004 the CIPD (Chartered Institute of Personnel and Development) conducted a survey of organisations in the UK and Ireland in order to see how many firms had adopted a policy for new and existing employees to set reasonable standards of behaviour at work. Their findings (2004:15) show that official pressure and media exposure have indeed fostered a new era of caution in the contemporary workplace.
“The vast majority of UK employers surveyed have a policy that covers defining and encouraging non discriminatory behaviour at work. Different organisations use different types and names for policies that cover these areas. Ninety one percent have a diversity/equal opportunities policy, 83% have a bullying/harassment policy and 39% have a policy covering dignity at work. All of these figures are higher in the public sector (96%, 90% and 51% respectively).”
As the CIPD survey dictates, a definition is the first problem posed in the establishment of an anti harassment policy at work. It has already been shown how problematic a definition of either harassment or bullying is but an attempt must be made within the context of the business in question. For instance, a workshop or a craft orientated organisation will wish to adopt different wording to a call centre where employees spend more time interacting with one another on a daily, working basis.
Case Study – Drafting an anti bullying policy: the NHS and ACAS
As a case study, the NHS strategy to eliminate bullying at work will now be examined (although its position as a public sector employer should be borne in mind throughout the analysis). In a bid to oust bullying from the organisation the NHS have outsourced much of the work regarding defining polices and implementing procedures to unions and third party experts, in the following instances, the UK’s largest trade union, UNISON and ACAS, an independent, impartial and confidential publicly funded body that was set up in 1975 to improve working organisational relationships.
The NHS has been subject of considerable media scrutiny for its cases of alleged harassment at work that have made the headlines. Jane Feinmann (The Guardian; 19 September 2001) noted that up to one third of the entire NHS workforce has been subjected to bullying or harassment in one form or another. It ought to be remembered, however, that the NHS is a unique case and an extraordinary mode of employment where the term ‘a matter of life and death’ takes on relevance and where frayed tempers can, in certain instances, be deemed to be a necessary by product of a highly stressful job.
According to Richards and Daley (2003:250), the NHS utilised the considerable wealth of resources pertaining to workplace harmony at the disposal of UNISON to establish an anti harassment policy where definition served as the starting point.
“A definition is crucial as it enables all staff regardless of their level or grade to understand what the organisation terms ‘workplace bullying’. This is particularly important in large organisations where different departments or units exist. UNISON uses the following definition: workplace bullying can be defined by offensive, intimidating, malicious, insulting or humiliating behaviour, abuse of power or authority which attempts to undermine an individual or group of employees and which may cause them to suffer stress.”
In addition to a descriptive definition, the anti bullying policy, according to UNISON, should include a host of examples of what constitutes acceptable and unacceptable behaviour at work, which should always be portrayed in easily understood, unambiguous terms. Role plays and examples can be used to illustrate the boundaries of the internal policy. This is essential defensive groundwork against any future cases of litigation levelled against the organisation. It is immensely important that the examples of bullying cited within the policy are focused on the actual acts of bullying behaviour as opposed to the bullies themselves. This recognises that some employees may unintentionally be bullies, which has a significant effect on any litigation hearings against the firm in the future.
In the wake of negative media portrayals and an unwanted culture of harassment, staff working at the Mersey Regional Ambulance Service NHS Trust was assisted in their attempts to eradicate bullying with the help of the government sponsored scheme involving ACAS, one of the leading examples of an organisation tackling the bullying problem head on. The ACAS website divulges details on how best to establish criteria for an anti¬-bullying policy as well as releasing the latest information relating to statutes against harassment in the UK and in Europe. As a third party, ACAS uses its position as an outsider to great effect, harnessing both managerial staff and union opinion as well as gaining the trust of the entire organisational pyramid.
ACAS are keen to stress that, in the eyes of the law and employment tribunals, it is the employer that must take steps to combat bullying. Crucially, the organisation takes the view and perspective of the employee. Within the latest available online advice leaflet (acas.org website; first viewed 08/07/05) detailing advice on the general guidelines for bullying and harassment in the workplace, ACAS highlight the uncertain nature of discrimination at work, yet also declare that it is up to the organisation to promptly diffuse the situation.
“Investigate the complaint promptly and objectively. Take the complaint seriously. Employees do not normally make serious accusations unless they feel seriously aggrieved. The investigation must be seen to be objective and independent.
Employers investigating claims of harassment should consider all the circumstances before reaching a conclusion, and particularly the perception of the complainant as harassment is often felt differently by different people. Having gathered all the evidence employers should ask themselves ‘could what has taken place be reasonably considered to have caused offence?’”
ACAS are in favour of the dispute being dealt with by both the recipient and the harasser without recourse to a third party. However, that is rarely the case. In the example of the Mersey Regional Service NHS Trust, ACAS were brought in directly and in person to oversee a new managerial policy of zero tolerance on bullying and harassment in the workplace.
The Merseyside NHS Trust is a workforce of some 1 100 people, which makes it considerably larger than many private sector organisations. It should therefore be presumed that the number of instances of harassment is likewise disproportionate to the UK corporate average. However, the Mersey Regional Service NHS Trust felt it necessary to utilise government funding to make a gesture of defiance against bullying.
The first task for ACAS officers was to help resolve outstanding cases of harassment in the NHS trust. Once this had been accomplished, officers met managers and union officials to draft an internal policy with the aid of interested members of NHS staff, which was the necessary step to ensure future cases could be dealt with in a swift, administratively sound manner with the added benefit of reducing the amount of time NHS managerial staff had to spend dealing with internal disputes.
Furthermore, ACAS operated a series of workshops attended by the majority of the Merseyside NHS workforce to detail the shortcomings of the present policy in addition to forging a greater awareness of the dangers of bullying in the workplace for future reference: it transpired that many members of staff were unaware that they have even been bullied in the first place.
In 2002 ten members of staff were selected, via a protracted interview process, to draft a new Dignity at Work policy and to oversee its implementation along with about seventy ACAS trained managers, Fair Treatment Advisors and trade union officials. With the help of ACAS, leaflets were distributed throughout the organisation to make sure that staff understood the implications of the new anti harassment strategy. With this the groundwork for increasing employee and managerial awareness as well as defining the accepted code of practice during working hours was completed. In 2003 ACAS returned to the Trust to ascertain the effects of the combined efforts of all concerned to reduce the instances, costs and effects of bullying in the workplace, with the results detailed on the ACAS website (acas.org:3; first viewed 30/06/05).
“The revised policy has played a pivotal role in reinforcing the new culture of openness and receptivity to different viewpoints that managers are trying to encourage within the Trust. The process of using a joint working group to consult with stakeholders and develop procedures was so successful that managers now intend to use joint working and early problem solving to tackle a wide range of policy development and operational issues, rather than waiting for problems to emerge and then having to ‘clean up the mess at the end’. This contrasts with the past, where the tendency was for managers to impose solutions on the workforce that were not always well received.”
The above is a case study of a public sector employer. For most companies in the private sector, however, the internal budget does not cover elaborate union participation and external influences. Yet the same essential rule applies: every organisation should cover itself legally and ethically via a policy pertaining to anti bullying and anti harassment in the workplace. Adopting such a stance is a certain overture to a decrease in future complications arising from issues of dispute in the workplace; furthermore, the responsibility naturally shifts to the complainant to verify his or her story in light of the pre conceived notions of correct and incorrect behaviour at work.
Investigating complaints of bullying and harassment in the workplace
Clearly, establishing an anti bullying policy is no guarantee that harassment will not take place. Every organisation should prepare itself to mobilise its resources in the wake of a complaint. Not only does this ensure a speedier resolution to the problem but, again, it is a positive attribute in the eyes of employment tribunals. Delaying over the decision to investigate a complaint over bullying at work can represent the difference between being found guilty or innocent of negligence. All matters must be taken seriously and action taken at once. Logically, therefore, the first point of reference for filing just such a complaint must be established and made known to the entire workforce.
Many organisations, including the graduate recruitment corporation, Accenture, still choose to retain the services of the human resources department when dealing with complaints of harassment by employees. Yet it is often a fact that HR departments, although often the first point of contact for employees who have been subjected to harassment and abuse, are ill equipped to deal with the majority of bullying cases. This is because most harassers are of a management or executive level within the organisation and therefore they are, by nature, senior to the personnel within the HR department. Sometimes the head of the human resources department might be on a level par to the person to whom the complaint is being levied but, more often than not, the recruitment staff will find the situation beyond the realms of their control and authority. Zapf, Einarsen, Hoel and Vartia (2003:116) compiled evidence to show that the overwhelming majority of office harassment and workplace bullying cases in the UK involve employees positioned in the higher echelons of the organisation abusing lower level members of staff. The left hand column of the below table details the name of the instigator of the academic survey and the year that the information gathering relates to.
Bullies No. of Supervisors Colleagues Subordinate
UK (Cowie et al, 2000) 59 71 17 0
UK (Hoel et al, 2001) 553 75 37 7
UK (UNISON, 1997) 103 84 16 0
UK (Quine et al, 1999) 421 54 34 12
It is clear that the overwhelming majority of cases cited in this particular survey show that it is the managerial staff and supervisors that are responsible for the bullying in the workplace. It is thus in the best interests of all parties to establish a point of contact who is able to respond quickly and effectively to any and all complaints received so as members of staff might not continue to make the same mistake of confusing authority with integrity. As Vicki Merchant and Helge Hoel (2003:259) make clear, a stark choice faces the private sector employer and manager as soon as the issue of harassment in the workplace arises.
“In response to a bullying complaint organisations have a choice between using internal resources and resorting to external expertise. The decision to opt for an external investigator may be particularly appropriate where the organisation has little or no experience of investigating bullying or harassment complaints, where the alleged perpetrator holds a senior management position, or otherwise when the authority of an external person may be helpful during the investigation as well as in the aftermath of an investigation. The fact that an external specialist is able to dedicate time exclusively to an investigation may also make the process more efficient and effective.”
Should the organisation decide to deploy the services of an external investigator, it is imperative that the investigative framework is set out from the start (it is vital that this person not be viewed as being under the influence of the Managing Director or any of the higher echelons of the management team.) This is particularly relevant for managers who will be under pressure in terms of time scale and what to do with the employees in question during the interim. Time scales are notoriously unpredictable when dealing with complaints of harassment and bullying in the workplace – typically the organisation will wish to see the matter resolved within three weeks but managers must be prepared to react in an ad hoc manner throughout the investigation. Another outstanding issue in the event of recourse to an external party is to whom the finalised report will be sent. It is at the behest of the investigator to ensure that the report is not viewed by any member of staff within the organisation who would be able to affect the outcome of a tribunal hearing should the case reach such a legal destination.
There is also the issue of suspension to be dealt with by the employer. Clearly, the reasoning behind the decision to suspend the alleged harasser or not pending the outcome of the investigation ought to be in direct correlation to the severity of the complaint. Managers must remember that they leave themselves open to the charge of negligence on the part of the recipient and also to a counter claim by the alleged perpetrator, who could, in the event of a tribunal ruling, cite that the offence cannot have warranted dismissal in light of the lack of suspension on receipt of the initial complaint. Yet again it can be seen how the organisation must walk a legal and ethical tight rope during the period of investigation, which further underscores the intelligence in opting to delegate the work to a professional outside mediator.
However, should the organisation decide to attempt to deal with a complaint in house, then the first step should always involve an informal meeting between the recipient of the abuse and a member of staff qualified and trained to deal with the complaint. The aim during this first phase of talks is to settle the matter in an informal way without recourse to external parties. Clearly, this depends solely on the recipient and the nature of the offence. Should the victim be unwilling to confront the accused person in question then a second phase must be enacted which involves all of the relevant actors.
A meeting between the accused party and his or her line manager must take place soon after the first attempt at reconciliation between the victim and the company representative. The key point to bear in mind is the absolute necessity not to accuse anybody of anything at this stage of negotiations as the organisation can be held liable for slander in the appeals court. An accusation likewise shifts the emphasis of the investigative process from the private to the public domain.
The crux of the matter is reached within this conversation; a willingness to accept the complaint on the part of the accused can and should bring about a speedy resolution to the problem with a return to normal working conditions highly likely. However, if the accused refuses to accept the accusation and the recipient has not altered his or her stance, then the matter has to move to the formal process. Clearly, the severity of the initial claim is to be recalled throughout the investigation. This should be gauged against the anti bullying policy which should already have been circulated.
The third phase must by definition involve an independent external investigator because attempts to garner an internal reconciliation have patently failed. The results of the prior meticulous and thorough investigation process are referred to a panel or singular person for adjudication. As with the questioning, this person or group of people must be seen by both parties to be completely impartial. The greatest dilemma for the adjudicator in such a set of circumstances is if there were no witnesses to the alleged bullying. This is where expertise becomes such an important issue – it is presumed that the wealth of experience garnered by the adjudicator from previous instances would give him or her ability to make a reasoned judgement based upon professional instinct.
Throughout the duration of the investigation counselling and advice should be offered to the victim of the alleged workplace abuse. Not only is this an ethically sound stance to take (which will by nature appear in the favour of the organisation in the event that the case reaches a tribunal) but the subsequent ‘opening up’ of the account of the abuse by the complainant might reveal more as to the true nature of the instance. Under professional questioning many complainants reveal themselves to be a classical ‘victim personality’, for example, where an employee has been proven to be overly sensitive or timid to receiving instruction on previous occasions or where an employee shows all the signs of a victim during childhood reliving past events: should any of these examples be proven to be the case then the person to whom the complaint has been filed against, and his or her actions within this context, ought to be viewed in a more lenient light.
Managers would be advised to recall that the remainder of the workforce will inevitably have been negatively affected by the process of investigation and the inevitable rumours that will have circulated, which only serve to exacerbate the problem within the corridors of the organisation. Some members of the team may have forged close bonds with the accused and some may have experienced the same abuse as the victim, yet the cumulative effects remain essentially de motivating for all involved, as Wagner (1992:91) highlights.
“Replacing a difficult team member (however welcome that may be) will require the team to reform and adjust. Similarly, if bullying is taking place then the remaining team will need support to see them through this period too. Also, it can seem to other, more compliant team members that the troublemaker is getting all the attention.”
In addition to the recipient and the remainder of the workforce, the effects of the investigation upon the harasser should likewise not be pushed aside, a key feature within the erstwhile context of the British legal system’s mantra of ‘innocent until proven guilty.’ As Gillow et al (2003:110) explain the same facilities should be available to the accused party as to the recipient until details of the investigation reveal a more tangible truth.
“It should never be forgotten that the accused harasser also has employment rights… wrongly assuming that a person accused of harassment is guilty might result in a stress related personal injury claim or a constructive dismissal claim. If confidential counsellors are available, the accused harasser should be given the opportunity to speak to a counsellor.”
However, even following step by step procedures as detailed above does not guarantee a resolution to the matter. Still, the recipient might not be satisfied. He or she may remain too traumatised to work or may even wish to pursue a compensation claim through the courts regardless of the outcome of the internal investigation. The victim may want his or her name cleared, the employer found negligent and the perpetrator dismissed. At this point the process moves out of the jurisdiction of the organisation.
One area the organisation still has priority and jurisdiction over is, of course, the fate of the perpetrator. In the event that the investigation yields a clear case of guilt on the part of the accused employee then dismissal is the only outcome which should be entertained by the organisation. Ideally, a wealth of evidence and information will have been filed to make the matter a simple choice; however, this is often not the case. But, as Daniel Barnett (2002:49) highlights, the employer must be careful that, in the written letter of dismissal, they make sure that the phraseology is correct – dismissing an employee for gross misconduct, for example, may work in the harasser’s favour.
“The courts have always refused to lay down a definition of gross misconduct or to set out categories of offences which amount to gross misconduct. This is because each case has to be considered on its own facts, and a tribunal simply has to decide whether an employer has acted reasonably in dismissing for a particular offence.”
Managers must likewise recall the regularity with which accused harassers will continue to deny the offence even in the face of seemingly overwhelming bodies of evidence that unanimously state otherwise. This is especially true for cases of sexual harassment in the workplace, which clearly hints at a deeper, underlying problem on the part of the accused. Susan Cooper (2005:86), an expert in analysing responses of sexual offenders and harassers states that, “there is often less denial by the offender in criminal behaviour such as drug abuse and stealing than sexual offending. This suggests denial is related to the sexual nature of the offence.”
It is at this point (of dismissal) that the discussion returns to the perplexing legal underpin of ‘burden of proof.’ But whereas the burden of proof is on the complainant in instances of indirect sexual discrimination, the organisation bears increased responsibility for dismissal should he or she have grounds to file a counter claim of unfair dismissal, a point which Julian Yew (2005:153), citing the latest procedures as advised by the Law Society, expands upon.
“Once the fact of dismissal has been established by the employee the burden of proof shifts to the employer to show what was the reason for the employee’s dismissal. Unlike wrongful dismissal, an employer can only rely on facts known to the employer at the time of the dismissal. Where there are multiple reasons for the employee’s dismissal, the employer must show what was the principal reason. It is for the tribunal to decide what is the real reason for the employee’s dismissal.”
These are the major legal stumbling blocks for managers when dealing with the consequences of bullying and harassment in the workplace. It is important to remember the absence of a singular set of rules; the best ACAS or the DTI can offer is a guideline of best practice in the event of a complaint. Examples clearly vary greatly in terms of both the nature of the offence and the length of arbitration required as a result as well as the occupational nature of the job and organisation in question.
As a footnote, it should be noted that independent investigators, human resources staff and management, regardless of their in house or external training, are not qualified to deal with extreme cases of abuse, especially if the abuse has taken place within a sexual context. In rare cases of rape, sexual or physical assault, or in instances where the workplace abuse has re¬opened childhood trauma in the victim, then the third party must not attempt to get involved in therapy for which they are woefully under qualified. Instead, referral to a specialist must take place with the organisation offering any help that they can in their capacity as the victim’s employer.
Discussion: the concept of staff care
As well as the drafting and implementation of an anti bullying policy the organisation is advised, by ACAS, unions and alternative impartial bodies alike, to conduct a more extensive, less tangible ongoing investigation into the prevailing ethos and culture within the company to facilitate an effective, perpetual monitoring of the broader vision of employee relations in the workplace.
This is not a quantitative quality; rather it is an insidious correlation between the dominant attitude in the workplace and the manifestation of conflict in the form of harassment, bullying and violence: an internal audit of morale. There is little reason in being up to date with laws and procedures without a constant monitoring of the concept of best practice. According to Ishmael (1999:157), a three way scheme ought to be devised to incorporate the principle of universal equal opportunity, valuing cultural and individual differences and managing the multiculturalism and diversity that is a vital ingredient in the twenty first century British workplace and a key tool in the globalisation of offices in the UK.
Equal Opportunities Valuing Differences Managing Diversity
Quantitative characteristics – Equality of opportunity in the work environment is achieved by ensuring fair representation of all groups. This eventually changes the make up of the workforce and is monitored by statistical analysis and evaluation reports. Qualitative characteristics – The appreciation of differences and the creation of an environment in which all employees feel accepted and valued. Attitude surveys and audits are used as a form of monitoring and evaluation. Behavioural characteristics – Concentrate on the creation of policies which enable all employees to work at their fullest potential. Performance management and appraisal mechanisms, which set goals and objectives, form the basis of monitoring and evaluation.
Legislative characteristics – Policies and action plans are based on legislative requirements. Ethical characteristics – Moral, ethical and value reasoning are behind this cultural change. Strategy characteristics – Aims and objectives are integral to the organisation’s overall strategy, and are internally driven. Behaviours and policies contribute to an organisation’s productivity; results are linked to reward and benefit.
Remedial characteristics – Positive action initiatives and targeting are introduced as measures to reduce the impact of past discrimination for “disadvantaged” groups. Visionary characteristics – Everyone benefits in some way and all feel valued and accepted in an inclusive environment. Pragmatic characteristics – The organisation benefits through increased morale, greater creativity, increased productivity and a healthier bottom line.
Assimilation model – Assumptions are often made that disadvantaged groups will adapt comfortably to the existing organisational culture, climate and behavioural norms Differences model – Assumptions are made that individuals retain their own characteristics, contributing to changes in the organisation and its culture, creating a common set of values. Diversity model – Assumes that individuals find new effective ways of working together in a positive work environment.
“Open door” characteristic-
Equal opportunity opens doors to minority groups to enter organisations, changing recruitment, selection and progression systems. “Open mind” characteristic-
Valuing differences affects the attitudes of employees and attempts to change core values. “Open system” characteristic-
Changes managerial practices and procedures in an attempt to improve them.
Perceptions of positive discrimination – Resistance may come from majority groups who feel that minority groups have an advantage over them. Fear of change – Resistance may come from those who have discomfort with differences and who want to return to the days of mono culture Denial of reality – The need to change and learn new skills, alter existing systems and find time to work towards achieving synergy may lead to a reluctance to face the enormity of the task ahead.
The concept of staff care, monitoring and updated internal audits has taken on new significance since 1 October 2004, when the dispute resolution provisions of the Employment (Amendment) Act 2002 came into force. Following on from ACAS recommendations for resolving disputes internally within concrete professional guidelines, the Government hopes that these provisions will result in more grievances being resolved within the workplace and thereby contribute to a reduction in the estimated 100 000 employment tribunal claims made each year, according to the Department of Trade and Industry.
Evaluation of staff relations and monitoring of the implementation of anti harassment polices is as important a step in the construction of a harmonious working environment as the drafting of the policy in the first place. It would be arrogant and ill advised for any organisation to presume that their first draft was flawless and that the problem had essentially been curtailed at this point. Evaluation enables managers to make amendments to policies in light of employee responses. This makes sure that the policies and grievance procedures of the organisation are up to date and, more importantly, relevant within the context of the daily working life of the company as an organism. The result is improved communication, increased morale, greater managerial exposure at grass roots level and a perpetual improvement of training and monitoring within the broader workforce. The following table (how employers evaluate anti discriminatory policies, measured in percentage of respondents), issued by the CIPD (2005:17), shows how British companies evaluate employee responses to internal policies.
Manufacturing and production Voluntary, community and not for profit Private sector services Public sector services
Exit interviews
57 59 60 63
Informal feedback 49 53 49 54
Employee attitude surveys 38 41 42 69
Return to work interviews 36 33 37 46
Appraisal discussions 30 44 34 34
Training feedback
22 43 26 48
No evaluation
16 3 17 7
It is, however, important that the culture of evaluation in the organisation is measured so as not to take up all of the managers’ time. Although staff care and employee relations will ensure an increase in morale and productivity, all of the good work will prove to be futile if the most important members of the business are tied down with red tape and are capsizing under a weight of procedures and policies. As with almost every detail pertaining to the discussion of harassment and bullying in the workplace, the organisation and managerial staff need to discover a healthy, effective middle ground which ensures that their daily work is attended to as well as the broader occupational health and safety of all members of staff.
This end should be achieved via first educating line managers in the implications of staff care and the consequences of negligence on their part. It is important that the managerial staff recognise their key responsibility for implementing the company’s anti harassment policy and that the concept of staff care is an ongoing experience that needs regular monitoring even when relationships within the team appear to be at an optimum; it is a lamentably common feature in workplaces that bullying arises at the exact moment when discord seems to have been expelled from the office. The CIPD and ACAS both agree that one of the major challenges in creating a universal policy of dignity at work in the UK is the education of line managers in terms of how to detect and tackle the problem of bullying and harassment. In much the same way as managers attend courses on motivation and team building, so they should also be regularly sent to seminars on staff care and anti harassment in the workplace.
The human resources department should likewise be educated, trained and updated in light of employment law alterations and the grievance procedure utilised by the organisation. Certainly in the private sector, the role of the personnel department in tackling bullying is more central to the health of the organisation than in the public sector. As the members of staff responsible for recruitment, the personnel department should likewise learn to be able to spot the early signs of bullying in the workplace both from the perspective of the recipient and the harasser. As already declared, though, it is notoriously difficult for interviewers to detect a potential bully during a series of formal meetings when job description and qualifications often precede the underlying human characteristics of the individual in question.
A common feature of all of the literature perused pertaining to bullying declares that, much of the time, the bully comes across to senior staff, recruitment and management as a charming, gregarious person; only in the company of subordinates does he or she portray themselves in their true light. It would, therefore, be unfair to blame interviewers for permitting a bully to slip through the recruitment net, but in the event of a candidate revealing a history of harassment or bullying in the workplace, then the responsibility rests very much upon the human resources department to investigate the matter further before even considering offering the interviewee the position.
Furthermore, the human resources staff must learn to keep detailed records of all events, complaints and instances, however seemingly insignificant at the time. As Graham and Bennett testify (1998:176) the compilation of data on both filing and information technology systems alike can make the difference between an organisation operating within the bounds of the law and making illegal use of confidential data under the stipulations of the 1984 Data Protection Act.
“A company of any size should appoint a co ordinator to ensure that the Act is observed and to deal with requests for disclosure from employees… Employees should be told about their rights under the Act and the limitations on those rights. An explanatory section could be included in the employee handbook, if one exists, or make easily available on the same lines as the detailed conditions of employment.”
Staff care is already a recognised vehicle through which to resolve workplace disputes in the USA where attempts have had to be made to counter a litigation culture that sometimes appears on the edge of chaos. Although not dissimilar to America, the prevailing culture in the UK, not merely in the workplace but also in the home and private sphere, is one which embraces conflict resolution by means other than resorting to tribunals and courts. Staff care is therefore a key way in which to maintain the harmonious status quo in the workplace, not merely a romantic illusion, but a real, tangible managerial goal, at least according to Lewis and Lewis (1996:161).
“Within the workplace a partnership approach can help all sides to see the need for an importance of mutual flexibility that is willingness to give and take on both sides, which several contributors argue is the key to the success of new approaches to work. Partners include unions and other employee groups, work teams and management. In addition, the informal collaboration which often takes place between colleagues and is essential to informal flexibility and latitude is highlighted, and on a more formal level the role which an outside researcher or consultant can play as a partner as a catalyst for change is discussed.”
Managers must always be aware that the bully or harasser may use the concept of staff care and employee relations to cement his or her position in the company. Ellis’ research (workplacebullying.co.uk) of bullying in the work highlighted at least one instance of a manager who used the system of staff care to perpetuate his harassment of a lower level colleague in the supermarket in which he was employed. When the stress of his own bullying made the recipient’s eczema increase in severity the manager saw a chance to further her humiliation: “rather than supporting her made use of the company’s policy in relation to staff care, called her to the office and asked her if her complaint was contagious as she was working with food.”
Yet the abuse of the staff care system by the few should not take away from its myriad of benefits for the many. A greater emphasis on all of the previously mentioned steps to ensure a greater awareness of bullying in the workplace and office abuse will see to it that unscrupulous managers and petty employees alike will not continue to upset the delicate balance of the work ethos for very long.
Before attempting a conclusion mention must first be made of the increasingly significant political and economic process of globalisation, which is the most important change besetting British business in the twenty first century. It is within this context that SME’s and multi national organisations must compete each and every working day and will become an important factor in each and every industry in the UK, both in terms of the make up of the workforce as well as the harsh new realities of capitalist existence in the world economy.
Globalisation has forever altered the way that contemporary private businesses are run and one of the more beneficial aspects of the phenomenon has been the emphasis that has shifted towards employee relations within the spectre of a global free market economy. As Friedman (1999:9) claims, “globalisation means the spread of free market capitalism to virtually every corner in the world.”
Candidates are now available online from all corners of the globe, increasing the already prevalent sense of multiculturalism pervading British businesses. With greater diversity comes, inevitably, greater empathy and understanding. Globalisation therefore represents the need to alter pre¬ existing attitudes to employee relations and the recruitment process, as Rosalind Searle (2003:113).
“The context in which organisations are now operating is changing significantly. One reason is the increasing influence of globalisation on the application of selection systems. Many organisations – from multi nationals to health service trusts – are searching for suitable employees from across the world and applying the same selection criteria with limited attention to the effectiveness of these processes in assessing applicants from different cultural backgrounds. Many have little insight into how local context and climate may affect the effectiveness of their selection criteria. This is an area where practice is far ahead of research and comment.”
In terms of bullying and harassment, globalisation means greater exposure on the major international organisations in the country. With the aforementioned surge in interest in human rights in the UK, no employer would wish to see its name connected with abuse of employees at this time. What may be acceptable behaviour in one country may be deemed unlawful in another, and it is up to the managers of organisations to see to it that the entire workforce is treated with the same respect and dignity at work regardless of their country of origin.
Yet globalisation, as Friedman suggests, also hints at an increase in productivity and corporate competition. The gradual closure of the manufacturing industries in the UK, which has been visible in recent weeks with the closure of the Rover plants in the West Midlands, is proof of the altering complexion of the UK workforce and market place. It has been shown that the pursuit of excessive capitalist ideals and increased competition for jobs has made the issue of stress, harassment and bullying a serious managerial issue already at the dawn of the twenty first century. Government ministers, unions and industry tycoons are all wary of the consequences of a more concerted effort to penetrate the global market and reduce barriers to trade. Clearly a conclusion as to the likely effects of globalisation is futile at present; the phenomenon remains very much in its infancy. What is certain is that it is a political and economic reality whose significance and reach will only increase as the twenty first century transpires.
Conclusion
Although it may sound cliché and the same conclusion has been reached dozens of times before, extensive analysis of the effects, costs and real life examples of bullying in the workplace lead to the inevitable deduction that it truly is in the organisation’s best interests to attempt to curtail the problem as quickly as possible. Like a demoralising cancer bullying in the workplace has proven, time and again, to erode confidence in the company and dissolve any previous efforts at team building. In the harsh economic and political climate of globalisation, the issue is bequeathed further significance with the issue of harassment potentially meaning the success or failure of a particular given enterprise. Arnold et al (1995:98) give vindication to the ethos of equal opportunity in the workplace and the fiscal benefits of embracing such a policy, showing how the issue is important on a national as well as on a regional and an individual organisational basis.
“The future of the UK workforce will, in the short and medium term, need to utilise all of its human resources if it is to survive as a competitive economy. In the longer term, it must begin to truly grapple with the problems of discrimination against minorities at work, if we are to survive as a society.”
From the managerial perspective, the conclusion must be that a greater awareness as to the reasons for bullying and harassment in the workplace must be initiated quickly. Analysing data and survey findings from a wide range of academic studies reveals countless occasions where the harassment could easily have been prevented with a degree of foresight on the part of the managerial staff to see the trademark signs that a member of the team was suffering inexcusable abuse.
Clearly, managers can do little until the recipient of the abuse admits to the existence of a problem yet part of their mandate ought to be the ability to take members of staff to one side to enquire as to the state of their health and well being in the workplace: indeed, this is the concept of staff care and monitoring that is so crucial if the organisation wishes to expel harassment from the place of work.
Therefore, the answer lies in the attempt to make sure that all members of staff feel comfortable with the anti harassment and anti bullying policies in place. If the workforce remains unaware of the procedures in the event of workplace abuse, it stands to reason that discord will triumph.
Perhaps the most significant point to note at the point of summary is that the goal of creating a workplace completely free of bullying or harassment is an impossible dream. The CIPD estimates that the UK average per private sector Company last year was that each organisation had at least one claim made against them as an employer on the grounds of bullying and harassment. The most stringent policies and most advanced methods of monitoring will make no difference to this ultimate truth. The best any employer, manager and organisation can do is to follow the guidelines of policy, maintain up to date with regards to the latest statutes and laws, which change and amend with increasing voracity, and to deal with any complaints quickly, effectively and professionally. Though common sense and the law rarely see eye to eye, this ought to see the organisation covered in the event of litigation.
What no organisation can legislate for is the employment of unscrupulous individuals who see in l