The terms ‘bullying’ and ‘harassment’ are often used interchangeably when discussing unwanted behaviour in the workplace, but they are not the same thing.
Harassment is specifically defined in the Equality Act 2010 and occurs when a person engages in unwanted conduct towards another person that has the purpose or effect of violating the second person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the second person.
Crucially, in order for the unwanted conduct to be harassment, it must relate to a protected characteristic.
The protected characteristics are also defined by the Equality Act and are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Harassment can be related to a protected characteristic even if the target of the unwanted conduct does not actually possess the protected characteristic. An example of this would be teasing a person about a disability that they do not actually possess.
Additionally, the second person does not need to be the actual target of the unwanted conduct in order to be a victim of harassment, provided that the conduct satisfies the criteria set out above. An example of this would be where the second person shares an office with the target and feels uncomfortable because of the environment that is created.
As harassment is against the law, it is possible for a victim of harassment to bring a claim against their employer in the Employment Tribunal.
In contrast bullying also relates to unwanted conduct, but does not relate to a protected characteristic. As such, bullying has no legal definition but can take many forms.
Bullying is not against the law and so the victim cannot make a claim in the employment Tribunal based on the bullying alone.
However, every employer has a duty towards their employees to maintain a relationship of trust and confidence. If an employer has been made aware of the bullying but has not taken any action to stop it, then this may entitle the victim to resign and make a claim for constructive dismissal. Like most unfair and constructive dismissal claims, this claim is only available if the victim has worked for their employer for two years or more.
A report by the TUC in 2015 found that 72% of bullying was carried out by management. However, bullying should not be confused with robust management and the Claimant’s sensitivities will not be taken into account
Claimants should therefore be aware that the Tribunal will judge whether or not the unwanted conduct amounts to bullying, and therefore whether the Claimant was justified in resigning, on an objective basis, unlike harassment which is more subjective.
A prospective Claimant will therefore need substantial evidence supporting their claim for bullying in order to be successful and such claims are often very difficult to prove.