When dealing with toxic behaviour in the workplace, you may hear various terms describing unacceptable conduct such as ‘bullying’, ‘harassment’ or ‘discrimination’.
While on the face of it all three sound very similar, they each have their own distinct definition.
As an employer, you have a duty to do all you can to prevent and tackle bullying, harassment and discrimination in your workplace, but how do you identify which of these you are dealing with?
Here’s our guide:
There is actually no legal definition of bullying, but it can be characterised as unwanted behaviour from a person or a group that is offensive, intimidating, malicious or insulting, or involves an abuse of power that humiliates, undermines or causes physical or emotional harm to someone.
Bullying can be a one-off incident or a regular pattern of behaviour, and can happen face-to-face, in emails, messages, calls or on social media. It may also not be easy to spot and the perpetrators may not even realise the impact of their behaviour.
Bullying at work could be someone spreading malicious rumours about a colleague, excluding a person from meetings, emails or team social events, mocking a person’s size or accent, posting images of a person on social media with the aim to humiliate them, or giving someone a consistently heavier and unachievable workload than others.
By law, there are three types of harassment:
- Sexual harassment – unwanted behaviour of a sexual nature
- Harassment related to certain ‘protected characteristics’ under the Equality Act 2010
- Less favourable treatment as a result of harassment related to sex, sexual harassment or gender reassignment.
The protected characteristics covered by harassment law are age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. Interestingly, the otherwise protected characteristics of marriage and civil partnership and pregnancy and maternity are not included.
Bullying may count as harassment if the behaviour meets the definition of one of these three. For example, if someone is being bullied because of their age and it has the effect of undermining that person, this could be harassment.
Similar to bullying, harassment can be repeated behaviour or a one-off incident, and the harassment doesn’t need to have been intended.
The law on harassment also applies if:
- a person has been harassed because they are thought to have a certain protected characteristic which they don’t
- if someone is harassed because they are linked to someone with a protected characteristic, such as a family member or partner
- has witnessed harassment if what they’ve seen has violated their dignity or created an intimidating, hostile, degrading or offensive working environment for them.
Discrimination is when someone is treated unfairly because of a protected characteristic, which is against the law.
For example, if someone is turned down for a promotion because of their age, it’s likely to count as discrimination.
It can be broken down into two types; direct discrimination and indirect discrimination.
- Direct discrimination
As well as being treated unfavourably because of your protected characteristic(s), you can also be directly discriminated if you are treated unfairly due to a protected characteristic someone you are associated has (known as ‘discrimination by association’).
This type of discrimination also comes into play if you are treated differently because of a protected characteristic people perceive you to have (otherwise known as ‘discrimination by perception’). For example, bullying a heterosexual man for being homosexual because they appear “camp”.
- Indirect discrimination
Indirect discrimination is when workplace rules or arrangements that appear fair on the surface actually adversely affect those with a protected characteristic. For example, a job advert asks specifically for at least 10 years’ experience in a particular sector, which could arguably be excluding young people with the correct skills and qualifications.
So, should I deal with each of these behaviours differently?
The simple answer is ‘no’.
Firstly, legally, as an employer you must do all you reasonably can to protect your people from all three. This covers employees, freelancers, contractors and job applicants.
Secondly, while bullying may not be legally defined like harassment or discrimination, it’s physical, mental and emotional impact on an individual – and ultimately the culture of your workplace – is equally harmful. Therefore, complaints of bullying should be taken with the same level of seriousness as others. If not dealt with effectively, for example through informal mediation or more formal grievance procedures such as workplace investigations, they can all eventually lead to damaging employment tribunals.
Tell Jane provides comprehensive training for HR professionals, leaders and employees to understand and identify workplace bullying, harassment and discrimination. We also provide training for conducting fair, inclusive and impartial workplace investigations in-house. Discover more by emailing firstname.lastname@example.org.
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