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Where did the phrase Bullying & Harassment come from?

 by Gordon Turner

"I've been bullied and harassed" 

I was in Manchester on Friday and received one of those random calls from a potential client where, with the best will in the World, I really couldn't see what I could do as an employment lawyer to help. The gist of it fell under the general, and somewhat wearying banner of 'bullying and harassment'. And on my way home I found myself thinking: "where did the phrase: 'bullying and harassment' actually come from?" Some things inevitably come together (for example, a horse and carriage) but with bullying, why must there always be harassment also?I have heard this combination three times in two days now (and once again even is I write).

It's dangerous to generalise 

Before saying anything else, I stress that of my five employment tribunal claims, this year, three of them involve employees who could, in all fairness, assert that they had been 'harassed' in a legally relevant way. But importantly, there were facts (in law this is generally, dates, what happened, how they can be proven) supporting the assertions and therefore good reason to put a case together.

"I've been bullied and harassed...but I can't substantiate it" 

On Friday, another person called me...something about a 'glass of water' and 'human rights' and the B&H tag. Just now, I took a call from a person who also raised the spectre of 'bullying and harassment', making quite toxic assertions about alleged racial hatred...but with no facts to support in support. I pointed out that it is monumentally unjust to accuse someone of something so vile as racial hatred without any particulars or evidence. The thing that really troubled me most was the open acceptance (in response to my request for details) 'well...I can't really substantiate it, but...'

Employers & Employees- just stick to the facts

If someone makes allegations of this kind, always stay calm; use any procedures you have or follow the ACAS Code (1) and make it clear that you will take the issues seriously but, during the investigation, ask for dates and times and what was said. An employee needs to present facts from which inferences of discrimination might be drawn and in that case, the burden of proof can even
shift to the employer. Keep an open mind; there could be some truth in the allegation.

But harassment is not a throw away word

In employment law, harassment has a very specific meaning but only within discrimination (or similar) type claims. It is:

"....unwanted conduct in relation to a protected characteristic (eg: race, sex, disability etc.) which has the purpose or effect of violating (the person's) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for (the person)"- Equality Act, Section 26(1)
These words require serious infringement of an employee's right not to be discriminated against. The word 'conduct' is the main one to think about. What did the person do?

Harassment does note cover the following situations:

generally fed up
don't like my boss
don't 'get on' with my colleagues

I'm an employer- what to do?

Employers who become aware of facts which suggest these rights have been infringed should take them seriously. Investigation is key. A person who makes allegations without particulars will not satisfy the preliminary tests for bringing an employment tribunal claim, so keep calm and ask the: what, where, when and why? questions. If you isolate this at the beginning, it will help you with your defence.

Please don't cry wolf 

For anyone who is simply upset, or angry, please don't bandy allegations of 'bullying and harassment' around and please, please don't inflame racial issues on a whim. It makes a mockery of whole structure of anti-discrimination laws which people have fought so long and hard for. If you are the victim of bullying and harassment, stick to the facts and co-operate in any investigation...

Kind regards,

Gordon Turner


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