Reports of bullying and harassment in the workplace have become more prevalent in recent times with accusations affecting every sector – from Hollywood to Holyrood, and everywhere in between. In many ways, this spike in publicity has been triggered by high profile movements, such as the #metoo campaign, in relation to sexual harassment of women in the workplace.
Bullying, harassment and other forms of unacceptable behaviour in the workplace are widespread problems which affect all genders, races and ages. Given that the potential consequences of allowing such behaviour to go unchallenged are severe (in terms of productivity, staff morale and retention rates), it is important that employers take the appropriate action to create an open culture within the workplace, where staff feel comfortable and safe.
Unacceptable behaviour in the workplace
Generally, unacceptable behaviour can be defined as behaviour that creates, or has the potential to create, risk to the business or the health and safety of employees. It can include:
- Coercion and/or discrimination
- Aggressive/abusive behaviour
This list is not exhaustive and in some cases other types of behaviour deemed acceptable in one workplace may be considered unacceptable in another.
Under the Equality Act 2010, organisations within the UK are legally required not to discriminate against individuals on account of any of the protected characteristics covered by the Act; however, even outwith the terms of this act, there is a more general obligation to prevent bullying and harassment of any form in the workplace.
Employers often have to conduct a balancing exercise in order to adequately deal with unacceptable behaviour in a way which, where possible, resolves the issue but maintains the relationship between themselves and the employee engaging in unacceptable behaviour.
One of the most effective ways of dealing with unacceptable behaviour is to ensure that you have in place a comprehensive disciplinary policy which clearly details the process to be followed in misconduct cases. This, where correctly followed, ensures consistency in approach and helps to protect against claims of unfair dismissal. Some employers also adopt polices such as on Anti-bullying and Harassment to provide additional guidance on unacceptable behaviour in the workplace.
In almost all cases, informal attempts to resolve matters should be attempted prior to invoking the formal procedure.
Suspension – avoiding the knee jerk reaction
In cases avoiding serious allegations of misconduct, employers may be minded to suspend the employee pending a disciplinary investigation.
Suspending employees as an automatic response in every situation could be problematic for employers. It may breach the implied term of trust and confidence, but it may also breach the employment contract itself; thus potentially freeing the employee of any post-termination restrictions.
While eradicating and preventing unacceptable behaviour in the workplace should be of critical importance to employers, often overlooked is how best to deal with behaviour which while challenging, does not necessarily cross the boundary and become a disciplinary issue. It is often difficult to know how to deal with employees who are merely difficult as opposed to offensive.
Even where disciplinary rules have not been broken, disruptive behaviour at work can still present a major problem for management in terms of time and energy required to deal with it.
In many cases a quiet word is all that it takes to turn awkward behaviour around, but striking the right tone, knowing how much to say and what to hold back is a subtle skill that benefits from training and experience. It's important to evaluate the situation, establish the facts and take prompt and decisive action in line with internal policies and procedures.
Managers should be provided with comprehensive and regular training in how to deal with disciplinary matters quickly and effectively and be aware of best practice in order to encourage a positive workplace culture.
As noted above, a well written and effectively implemented disciplinary policy and the procedure is essential in ensuring that unacceptable behaviour is dealt with and suitably deterred. At Harper Macleod, we can assist with all stages of the creation and implementation of the disciplinary process, as well as bespoke training for managers.
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Our team of specialist employment lawyers can assist in the negotiation of employment contracts and acting for employees in any disputes that might arise. Please contact us to discuss further.