Allegations of workplace bullying are sadly all too common. Employers have a duty to take reasonable care of the health and safety of their staff and this includes those facing such allegations of bullying.
These duties arise under common law, and health and safety legislation and are also an implied term of the employment contract. This extends to mental as well as physical health and encompasses workplace bullying, given the impact such behaviour can have on an employee’s mental health and well-being.
It is important to remember that employers owe these duties to all their employees, including those accused of bullying. It goes without saying that victims of bullying should be protected. However, employers also need to protect those accused of bullying and be mindful of the difficulties they may face when such allegations are made, including the potential damage to their well-being, reputation and employment, particularly when it turns out they were wrongly accused. Failing to do so could leave employers exposed to such claims as unfair dismissal, breach of contract or discrimination.
What steps can employers take to protect those who face accusations of bullying?
To ensure that they do not breach their obligations toward the accused employees, employers can take the following steps when dealing with allegations of bullying:
- Refer to the relevant internal policies related to bullying and harassment as well as grievance and disciplinary procedures and ensure that they are complied with.
- Discuss with the parties involved whether the matter can be resolved informally before instigating any formal process. It may be possible to resolve the matter by having a private conversation with the parties without the need for formal action.
- If a formal process is instigated, promptly carry out a fair and reasonable investigation into the allegations and give the accused employee a proper opportunity to respond.
- Deal with the matter sensitively, while keeping an open mind. Avoid making premature assumptions and reassure the accused person that no conclusions have been reached during the course of any investigation.
- Carefully consider how the working relationship between the complainant and the accused will be managed while any process remains ongoing. Employers should avoid knee-jerk reactions like suspending the accused employee. Changing the working arrangements or transferring the employee to a different department could also give the impression that the outcome of the investigation has been pre-determined. Instead, employers should consider whether any such action is reasonable, appropriate or necessary in the particular circumstances of the case.
- Decide whether it would be appropriate to offer workplace mediation with an independent third party to help repair the working relationship and resolve any conflicts. This is particularly necessary when an investigation does not result in a finding of bullying, but there is clearly a damaged working relationship. Other alternatives which may be appropriate include changing the duties, work location or reporting lines of one or both parties, with their consent.
- Maintain confidentiality throughout the matter. This includes the names of the parties involved and the details of the allegations. Where possible try to keep to a minimum the number of people involved, to reduce any negative impact on the parties concerned.
- Ascertain whether the bullying complaints have been made in good faith, or if they could be false or even malicious. Could this be a case of retaliation by a disgruntled employee or a case of ‘upward bullying’? If a complaint is found to be made in bad faith, the employer will need to consider whether action ought to be taken against the complainant. However, it is important to consider the potential exposure to complaints of whistleblowing or victimisation by the complainant if such action is taken against them.
- If a complaint of bullying is upheld, consider whether there are any mitigating factors and ensure that any formal action taken against the accused employee is proportionate and appropriate to the circumstances.
- Ensure that the accused employee is provided with appropriate support during the process. One way to do this would be to provide access to confidential helplines and counselling or employee assistance programmes.
Conclusion
Dealing with workplace bullying can be very challenging for employers who will be keen to demonstrate a ‘zero-tolerance’ approach to such behaviour. However, such allegations are also immensely stressful for the accused employee, and it is important for employers not to overlook their duties towards those individuals in order to avoid exposure to claims.
Don’t hesitate to contact our solicitors if you need further advice on how to handle accusations of bullying in the workplace.
