July 2019 – A Guide to Harassment & Bullying; Change to the May Bank Holiday 2020
Employment Update for Small Businesses
We are early with this month’s update as I am on holiday from 1st to 10th July and wanted to go away with a clear conscience! Lindsey will be holding the fort in my absence.
It has been a quiet month on the employment law front, so I thought I would expand on a specific topic for you – bullying and harassment. Often used interchangeable but, as you will see, they are quite distinct from each other. Also, just to let you know that there is a change to next year’s early May bank holiday.
Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.
Please forward this email to any of your contacts who might find it of benefit.
Bullying and harassment are terms which are often lumped together and used by employees when they feel they are being mistreated by colleagues or managers. But what do those terms actually mean, are they interchangeable, and what are the legal implications?
Harassment is a legal term which is defined in the Equality Act. It is a form of unlawful discrimination, and anyone who has suffered harassment can bring a claim for compensation, including a payment for injury to feelings. So as an employer it is important that you are able to recognise harassment and to take steps to prevent it occurring, and to deal with it effectively if it does occur.
Harassment is defined as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. The “relevant protected characteristics” are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
So if, for example, a member of staff makes frequent derogatory comments about homosexuality in the workplace, it could be that a number of colleagues would find that creates an offensive environment which could meet this definition. It does not matter if they are gay or not, as harassment only needs to be related to a protected characteristic, and that does not have to be one shared by the employee in question.
It also does not matter if the harasser intends their conduct to have such an effect or if it is inadvertent, as the definition relates to “…the purpose or effect…” So you could have a man in the workplace who refers to his female colleagues as, say, “sweetheart” or “my love”, with no intended malice – perhaps from an outdated sense of chivalry – but which could be considered to be harassment.
However, the definition of harassment does go on to include a bit of a sense-check, in that the question of whether conduct amounts to harassment or not will take into account whether it is reasonable for the conduct to have the effect of creating such an environment. That is important, I would suggest, as this should stop someone successfully claiming harassment when the conduct complained of is generally considered by most reasonable people as being fairly innocuous. Let’s face it, if it wasn’t for that check, plenty of East Midlanders would be guilty of harassment through calling all and sundry “M’duck”!
Employers can be held liable for harassment carried out by their employees (vicarious liability), so it is important that they take steps to prevent it occurring in the first place. Having relevant policies and training for staff can help, and ensuring that any complaints are dealt with swiftly and effectively.
Bullying has no legal definition, but that does not mean you don’t need to be concerned about it. If an employee is bullied at work, that could lead to them resigning and claiming constructive unfair dismissal.
Bullying could include threatening, aggressive, intimidating, abusive, insulting, offensive, cruel, vindictive, humiliating, degrading or demeaning conduct. It could also include ignoring people and leaving them out of discussions or events. Often it is related to abuse of power, but it can be peer to peer. The only real difference between bullying and harassment is that bullying is not linked to a protected characteristic, so it is not covered directly under the Equality Act.
Again, employers should not ignore bullying, as not only could it lead to constructive dismissal, it can cause problems with team dynamics and morale, which in turn can effect productivity and staff turnover.
If you would like to find out more about how you can avoid bullying and harassment in the workplace, please contact us.
Early May Bank Holiday 2020
Friday 8th May
The Government has recently announced that the early May bank holiday in 2020 will be on Friday, 8th May rather than Monday 4th May as anticipated, as it will now commemorate the 75th anniversary of VE Day (Victory in Europe).
National Minimum and Living Wage Rates
The current National Living Wage and National Minimum Wage rates are:
£8.21 per hour for workers aged 25 and over
£7.70 per hour for workers aged 21 to 24
£6.15 per hour for workers aged 18 to 20
£4.35 per hour for workers aged 16 and 17
£3.90 per hour for apprentices under 19 and those over 19 in their first year*
*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.