Dealing with bullying and harassment in the workplace

In its latest article offering legal advice to golf clubs, the National Golf Clubs’ Advisory Association (NGCAA) explains how bullying and harassment in the office can create the risk of employment tribunal claims. 

Bullying and harassment can be very problematic for a golf club employer to deal with, creating the risk of employment tribunal claims. In extreme cases, bullying and harassment may be obvious, but often other behaviour which could amount to bullying and harassment is harder to detect and address.

1. What are the legal risks if bullying and harassment are not addressed by an employer?

If an employer fails to address bullying and harassment then it may be liable under the Equality Act 2010 where it fails to protect its employees and other workers from harassment in the course of employment. A club could be liable for harassment carried out by its staff, and in some cases, even by third parties such as members and visitors.  Successful employment tribunal and other court claims under the Equality Act 2010 can result in payment of unlimited compensation.

In extreme cases a golf club, as an employer, could even be liable under the Protection from Harassment Act 1997 which can impose criminal liability on an employer for a course of conduct amounting to harassment by an employee.

A golf club could also be liable for breaching the implied terms of an employee’s contract such as the duties of mutual trust and confidence, to provide a suitable working environment and to redress grievances. At worst, that can entitle an employee to resign and claim constructive unfair dismissal.

Other implications of having a culture of bullying and harassment can include poor morale, poor performance, lost productivity and increased levels of absence.

2. What is bullying and harassment?

There is no legal definition of bullying but guidance from ACAS (A guide for managers and employers: Bullying and harassment at Work) describes it as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.

Harassment is defined in the Equality Act 2010 as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’. The protected characteristics referred to are age, disability, gender reassignment, race, religion or belief, sex and / or sexual orientation. In order to make a complaint or pursue a legal claim for harassment, the complainant need not possess the relevant characteristic themselves, but it can be because of their association with a person who has that characteristic, or because they are wrongly perceived to have one, or are treated as if they do.

There is a fairly low threshold for an individual to make a claim for harassment under the legal definitions. A one-off incident can amount to harassment and the victim does not need to have made the perpetrator aware that the conduct was unwanted. Further, the perpetrator’s conduct must have the purpose or effect of violating the victim’s dignity or create that environment for the victim.  Therefore, even if the perpetrator did not intend for the conduct to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, if it in fact had that effect then a claim for harassment may succeed (although an employment tribunal will look at whether it was reasonable for the conduct to have that effect).

Additionally, conduct, regardless of the reason for it, which is otherwise related to a protected characteristic because of the form it takes, will also amount to harassment. For example, engaging in racist or homophobic ‘banter’ at the golf club that might offend workers regardless of their race or sexual orientation. Such conduct need not be directed at the person who is complaining and, in fact, could be directed at no one in particular.

Particular provision is made in the Equality Act 2010 for sexual harassment including protection from being treated less favourably where an individual has rejected or submitted to the unwanted conduct of a sexual nature. It is important to have in place clear guidance as to what would be considered sexual harassment.

Examples of bullying and harassment might include matters such as:

• Spreading malicious rumours, or insulting someone by words or behaviour;
• Unfair treatment;
• Overbearing supervision or other misuse of power;
• Unwelcome sexual advances;
• Ridiculing or demeaning someone;
• Deliberately undermining a worker by overloading and criticism; or
• Preventing staff from progressing via promotion or training.

In general, if employees complain that they are being bullied or harassed, then they have a grievance which should be dealt with regardless of whether it strictly satisfies the definitions of bullying and harassment.

3. Liability of employees and third parties

Anything done by an employee in the course of their employment is treated as having also been done by the employer, whether or not the harassment is done with the employer’s knowledge or approval.  Therefore, a club will have direct liability for any acts carried out by employees to their colleagues. There is a defence available to this claim if a club could show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act (see below for steps to be taken). The individual perpetrator is also likely to have personal liability and be named as a respondent in employment tribunal claims.

Where harassment is carried out by a third party such as a member or visitor, then an employee could argue that a club’s reaction (or lack of it) might still amount to discrimination or harassment, particularly if a club had control to prevent it and did not take action.

4. What should a golf club do about bullying and harassment?

4.1. Golf clubs should have in place an anti-bullying and harassment policy. The policy need not be too lengthy but should include a statement of commitment to tackling bullying and harassment. A     club should also have a disciplinary and grievance policy to enable staff to know to whom they can turn to if they have a problem. Managers should be aware of these policies and ideally receive training in relation to them.

4.2. In the event of a complaint or grievance, ensure that it is dealt with promptly under the correct procedure, usually the grievance procedure.

4.3. Make sure managers set a good example for staff and are aware of the club’s legal obligations and the risk of claims against the club and them personally.

4.4. Make sure that standards of behaviour are clearly set out and communicated to staff and members wherever possible. This can be set out in the body of a policy or elsewhere via email bulletins, constitutional documents or notice boards. It can include a statement to employees that complaints or bullying and harassment will be dealt with fairly and confidentially.

4.5. If a complaint of bullying or harassment is made, it should be investigated promptly and objectively. An investigating officer should be appointed and will need to consider all of the circumstances including the perception of the particular complainant. The ACAS guidance suggests that the matter may sometimes be capable of being resolved informally or via other routes such as counselling or mediation. However, where an informal resolution is not possible, a club must consider whether disciplinary action should be taken at the appropriate level. A club should then have careful regard to its disciplinary policy following the specified steps, whether that is under the employee or member disciplinary policy.

For further advice on this or any other matter affecting the law for a golf club, please contact Alistair Smith on 01886812943 or alistair@ngcaa.co.uk

The National Golf Clubs’ Advisory Association (NGCAA)

The Media Centre, Emirates Riverside,

Chester-le-Street, County Durham, DH3 3QR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk