Preventing bullying and harassment: Five reasonable steps for employers to take

Author: Stephen Simpson

Under the Equality Act 2010, an employer can escape liability for acts of discrimination committed by its staff where it has taken "all reasonable steps" to prevent the discrimination. What steps should employers take to reduce the risk of liability for bullying and harassment committed by their workforce in the course of employment?

1. Have robust policies on equality, diversity and inclusion

Employers should have in place clearly worded and up-to-date equality, diversity and inclusion (EDI) and anti-harassment and anti-bullying policies. In particular, an EDI policy can set out:

• the different types of discrimination under the Equality Act 2010;
• the organisation's commitment to promoting a working environment that is free of discrimination and based on dignity, trust and respect;
• what steps are taken to ensure equality of opportunity, particularly when it comes to recruitment and career development;
• what steps are taken to ensure disability inclusion, particularly when it comes to reasonable adjustments;
• the organisation's equality, diversity and inclusion framework, which could include the use of ally networks, reverse mentorship, and employee resource groups; and
• what EDI training is provided.

Meanwhile, an anti-harassment and anti-bullying policy can set out:

• what constitutes bullying or harassment, with examples;
• what staff should do if they are being bullied or harassed;
• what procedure the employer will follow if complaints are made;
• the support provided for those affected by affected by bullying or harassment;
• what anti-bullying and anti-harassment training is provided; and
• what the consequences are for those found to have committed bullying or harassment.

2. Ensure that the policies are implemented in practice

It is no good for the employer to have impeccable EDI and anti-harassment and anti-bullying policies in place if they are not effectively communicated and implemented.

The reasonable steps defence will fail if the policies are not actively communicated to the workforce. For example, an employment tribunal will take a dim view of policies that are hidden on an obscure part of the organisation's intranet or locked away in a staff handbook that is gathering dust in a cupboard.

As part of the onboarding process, employers should require new recruits to familiarise themselves with the contents of the policies. Existing staff should be reminded of the contents of the policies at regular intervals.

The policies could be communicated via internal email updates or as part of the organisation's EDI training (see below).

3. Deliver effective and proportionate EDI training

A strong reasonable steps defence will often involve the employer showing that effective EDI training has been delivered.

Employers should remember that EDI training does not need to be expensive or complicated. Employment tribunals are likely to take into account the employer's size and resources when considering the reasonable steps defence.

While some large employers will engage specialist trainers to deliver detailed EDI training, for many employers a simple online refresher course that employees are required to carry out at regular intervals (for example annually) will be sufficient.

The employer could decide to target certain groups, such as line managers, for more detailed EDI training.

4. Stress the consequences of bullying or harassment

The clearer the consequences are for the perpetrators of bullying or harassment, the stronger the deterrent will be. The workforce must be made aware that perpetrators of bullying or harassment will face disciplinary action.

The employer's policies can make clear that anyone who is found to have committed, authorised or condoned an act of bullying or harassment will face:

• action under the employer' disciplinary procedure; and
• a sanction that could include dismissal if the allegations are made out.

It is also useful to remind staff that they can be personally liable for harassment - it is not uncommon for individuals to be included as respondents alongside their employer in employment tribunal claims for harassment.

In addition, those who are on the receiving end of bullying or harassment must be aware that they can bring their complaints to the employer without fear of reprisals and that action will be taken to deal with their complaints.

5. Have a clear strategy on equality, diversity and inclusion

Employers should ensure that they have clear lines of responsibility for taking proactive steps to prevent bullying or harassment in the workplace.

In a large organisation, this could include having a head of EDI who can continually assess the employer's EDI activities and broaden their scope where necessary.

Some organisations will have a separate team within, or in addition to, their HR department that is dedicated to equality, diversity and inclusion.

Whatever the size of the organisation, senior leaders can play their part too by engaging with diversity champions, diversity role models, and employee networks or resource groups.