Harassment hits hard at every level

(March 2021) When bullying or racism is involved, seniority and titles do not confer special protection 

Bullying or racism may seem the fate of the underdog, but recent headlines have shown how it may affect anyone at any level, including royalty and high-flying civil servants.  Companies are being encouraged to review their employment policies, particularly with many staff working in different environments during lockdown.   

Most recently, the Duchess of Sussex has talked about the impact of racism during her time as a leading member of the Royal family, while Palace staff responded by claiming bullying took place in her service.  These revelations came hard on the heels of the high-profile case involving a top civil servant who claimed to have been bullied by government minister Priti Patel during her tenure at the Home Office.  

For now, the Palace and the Sussexes are said to be talking privately about the claim of racism within the family, while lawyers have been instructed to conduct an independent review of employee reports of bullying.  For Sir Philip Rutnam, previously Permanent Secretary at the Home Office, a six-figure sum has reportedly been paid to settle his employment tribunal claim.  

And experts say such cases demonstrate the vital importance of having a proactive approach to policies and working practices when it comes to inspiring the right culture in the workplace.

In the UK, the Equality Act 2010 prohibits discrimination and harassment that is related to a protected characteristic.  These are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation; also pregnancy and maternity where the protection against harassment is subject to slightly different rules.

And while bullying itself is not against the law, it can easily become harassment, which is unlawful. Harassment is when a worker is subjected to unwanted conduct related to a protected characteristic that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Examples include making offensive sexual comments, or abusing someone for their race, religion or sexual orientation. 

It means all employers, whether within a royal palace, a senior place of government, or the smallest local business, have a duty of care to protect their workers.  They may be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it. 

And the cost of such claims is not just financial, it can also have a severe impact on reputation, as the Royal Family is currently finding.   Similarly, the Prime Minister has come under fire for his handling of the situation at the Home Office, after he said that any bullying by the Home Secretary was “unintentional”, despite the ministerial code of conduct requiring there be “no bullying and no harassment”. 

Everyone is entitled to work in a safe environment, free from harassment, such as bullying or racism, whatever the circumstances and whatever their status.  

It’s important that policies and culture in the workplace are in tune, and appropriate behaviour needs to be continually reviewed and reinforced among staff.   Too often, when complaints are made against senior staff, nothing is done to tackle the behaviour which caused the problem, meaning there is no learning, just a costly exercise in losing expertise which must be replaced.  If the wrong sort of behaviour is found, then it needs to be tackled.

These issues were raised in the recent case of Allay (UK) Ltd v Gehlen, where a worker complained about ongoing racial harassment by a colleague, with an internal investigation describing “racial banter” as having taken place.  The employee was later successful in his claim for direct race discrimination and harassment related to race, in a decision which was confirmed on appeal, despite the company arguing that it had taken all reasonable steps to prevent the harassment, having an equal opportunities policy and anti-bullying and harassment procedures in place.

The company also highlighted the equality & diversity training and bullying & harassment training which it provided, but the tribunal responded by saying that the company’s policies and training were “stale” and ineffective.  The Employment Appeal Tribunal said that taking ‘all reasonable steps’ to prevent discrimination in the workplace required an employer to meet a high threshold and, on the evidence, the training and policies were not effective.  Training had not prevented the harassment from taking place, and managers had not taken appropriate action once they became aware of the comments being directed towards the claimant.

This recent case highlights the importance of taking action on identified failings and being proactive in developing the right attitudes and keeping training regular and fresh, as this employer failed in their defence of a claim for racial harassment, despite appearing to have all the right processes in place.  Employers must foster a culture of zero tolerance towards harassment, and cannot rely on administrative procedures alone.

Allay (UK) Ltd v Gehlen UKEAT/0031/20

Solicitors for your home, your family, your business