“The Commons Speaker, John Bercow, should resign after a damning report into bullying and harassment in Westminster”[1] “Westminster MPs treated staff like servants, inquiry finds”[2] “After years of scandal, why is there still bullying in Parliament?”[3] “Bullying and harassment in the workplace is on the rise”[4] Just a few of October’s headlines… The media throw the terms “bullying” and “harassment” around without a care and arguably, this has influenced an increase in the number of anti-harassment cases being brought by individuals, typically in relation to the workplace. However, when a bullying and harassment case arrives on a litigator’s desk, it is worth understanding the tests applied to such behaviour to determine whether, in the eyes of the law, an individual has sufficient grounds for their complaint. By definition, bullying and harassment in the workplace is when an employee is systematically mistreated and victimised by colleagues and other workers through repeated negative acts such as insulting remarks and ridicule, verbal abuse, offensive teasing, isolation, social exclusion or the constant degrading of one’s work and efforts[5]. When assessing whether, legally, a course of conduct amounts to harassment, the following series of questions must be considered:
  • Did the harasser know, or ought to know, that their conduct would amount to harassment?
  • Did it occur more than once?
  • Did it cause the individual alarm and distress?
  • Can it be regarded by a reasonable person as being conduct that amounts to harassment?
The first and last questions can potentially be argued either way. Similarly, the terms “alarm” and “distress” are entirely subjective. For example, a hardened construction worker is less likely to be distressed by a colleague shouting a swear word at them whereas a more sensitive person in, for example, a caring profession may find such conduct alarming and distressing. Possibly because it is less common and therefore not considered acceptable. Whilst the examples are a serious generalisation, they go someway to show the subjectivity and complexity that an anti-harassment case involves. Bullying and harassment in the workplace should never be taken lightly or ignored, however when considering legal action, consideration needs to be given to the four key questions. Employers should nevertheless be notified if a fellow worker’s actions are deemed in any way distressing or unwanted.
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