According to ONS data, over 20% of adults who reported sexual harassment for the year ending March 2024 said this took place at their place of work (ONS).
With the Worker Protection Act 2023 imposing a legal duty to take “reasonable steps” to prevent harassment, the spotlight is on what employers can do to protect their workforces.
This article provides employers with information on the issues surrounding workplace bullying and harassment, what they should do, and the potential liabilities they may face.
What is workplace harassment and bullying?
Harassment is defined in the Equality Act 2010 and the Protection from Harassment Act 1997. It includes behaviour that violates a person’s dignity, or makes you feel uncomfortable, intimidated, degraded, humiliated or offended.
Bullying has no legal definition, with ACAS characterising bullying as “offensive, intimidating, malicious or insulting” behaviour, “an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone. ”. Whilst there may not be a standalone definition of bullying, it may give rise to claims, whether in connection with unlawful discrimination, and/or, potentially, for constructive dismissal, depending on the circumstances. These claims can be costly in time, money and reputational damage, and these behaviours can have an adverse effect on employees, often resulting in increased absence from sickness, anxiety/depression, low motivation and reduced productivity in the workplace.
Social media harassment
Bullying and harassment are not just face-to-face; they can also happen by letter, email, phone or even via social media.
With the ever-increasing speed of technological changes, there are implications for what is classed as bullying and harassment. The Equality and Human Rights Commission updated its guidance on workplace harassment, warning that comments posted on social media could be classed as harassment. This adds a whole new dimension to the obligations employers face in this complex area of law.
Harassment guidelines could become law
There are plans for the guidelines to become statutory measures enforceable by law. It’s important for employers to be aware of what bullying and harassment is, their duties and responsibilities to their employees, as well as potential risks. What is the difference between bullying and harassment?
Bullying and harassment are similar in terms of the behaviours exhibited and how they make the victim feel.
To be protected under the Equality Act 2010 the conduct must be unwanted, have the purpose or effect of violating that individual’s dignity and be related to one of the protected characteristics, which are:
• age
• sex
• race
• sexual orientation
• religion or belief
• disability
• gender reassignment
• pregnancy and maternity.
The Protection from Harassment Act 1997 affords protection against harassment unrelated to a protected characteristic, and civil claims can be brought by those affected.
Common types of bullying and harassment
Bullying and harassment behaviours in the workplace can include:
• unwanted physical contact
• workplace ‘banter’
• unwanted shouting
• unwanted remarks
• freezing employees out and ignoring their contribution
• denying someone training or promotion opportunities
• spreading rumours
• misuse of power or position
• overbearing supervision
• withholding information which can affect someone’s performance
• persistent criticism or undermining someone.
What can employers do to prevent bullying and harassment?
Employers can develop and circulate policies dealing with bullying and harassment, including what standards of behaviour are expected, what working relationships should look like and how to professionally manage these and deal with any conflicts.
Where employers can show that they took “all reasonable steps” to prevent harassing behaviour, then they will be much better placed in defending claims brought against the organisation. However simply having a policy is unlikely to be sufficient. Taking reasonable steps might mean having well-publicised policies but also undertaking effective and regular training of staff on the issue.
Management could be given training on how to act consistently and apply the bullying and harassment policy, to ensure they are familiar with the processes and how to follow them. Managers in particular must be trained about their responsibility to identify and prevent unacceptable behaviour.
Employees should be encouraged to feel that they can talk to someone in authority, for example, their line manager or someone in HR, and they will be listened to and have their concerns taken seriously, also, that they will not be censured for speaking out.
Training could also be given on the impact and damage that certain behaviours can have on those affected.
How to spot bullying and harassment
Staff can suffer in silence – feeling too anxious to tell someone about it for fear of not being believed, not being taken seriously or it getting worse as a result of speaking out. Good practice for employers includes being aware that it might be happening even if the person doesn’t report it. Things to look out for include:
• increased absences from work
• people disappearing from their desks, to get away – for example, going to the bathroom for long periods
• declining standards of work, especially if that is not typical
• people asking to move their desk or other location in which they work
• unexpected outbursts indicating stress
• colleagues avoiding or ignoring each other
What should employers do when there is a report of bullying or harassment?
According to a report published by the Chartered Institute of Personnel and Development, a quarter of employees think their company turns a blind eye to workplace bullying and harassment; so it is vital that employers react promptly and appropriately to complaints raised.
Where there is a complaint made, ensure that there is an effective resolution procedure so that the organisation can act promptly and conduct a thorough investigation, acting in a fair, confidential and sensitive manner. This will usually be set out in the anti-bullying and harassment policy or via a grievance process.
Where a complaint of bullying and harassment is well founded, employers will need to consider what steps to take against those who have carried out the conduct. These would usually be to consider appropriate disciplinary action under the employer’s disciplinary procedures, after an investigation has been carried out. Remember to always act with consistency.
What can employers do to support staff?
There are many ways in which employers can support affected staff, for example offer counselling to those who have made a complaint. Some employers may also offer the benefit of an external employee assistance scheme and employees should be made aware and directed to this.
If bullying and harassment leads to sickness, this will need to be managed appropriately, with support given in their return to work. It may be that the employer should consider, alongside a medical evidence or occupational health report, a phased return to work, adjustments to workload, or the possibility of a change of job or reporting lines.
Claims for workplace bullying and harassment
Bullying and harassment can lead to liability for employers as it is possible to pursue the employer for claims which relate to workplace bullying and harassment. This is because employers are normally liable for acts of their staff, whether they have condoned or dealt with the behaviour or not.
Where the treatment is related to a protected characteristic (see above) employees can pursue claims based on discrimination under the Equality Act 2010, where compensation for acts of discrimination is uncapped. If a complaint of discrimination is upheld, then it is likely a Tribunal would make an award of ‘injury to feelings’ of the recipient as well as any other financial losses that follow from the acts of discrimination.
Employees may also seek to bring a claim of constructive unfair dismissal where they may attempt to show that the employer was in breach of their contract of employment and that they resigned in response to that breach. Commonly this is on the basis that a term implied into all employment contracts, dealing with mutual trust and confidence, has been irretrievably broken. This claim is limited to employees who have been employed for two years or more. If successful, the recipient is likely to be awarded a basic award (taking account of their age, length of service and pay) and a compensatory award, which reflects the financial losses incurred (e.g. loss of earnings).
Civil claims are also possible where harassment is not related to a protected characteristic and can be brought under the Protection from Harassment Act 1997.
Future reform
The Employment Rights Bill proposes to reintroduce employer liability for third-party harassment in relation to protected characteristics where the third party harasses the employee in the course of their employment and the employer fails to take all reasonable steps to prevent them from doing so.
This means that employers may, once again, face a duty to protect their staff against harassment from customers and clients. This may be particularly challenging for employers operating in sectors where their staff frequently come into contact with third parties, such as hospitality and retail. Employers in these sectors have far less control over the actions of third parties than they have over those working for them, making this duty particularly challenging.
Restricted use of non-disclosure agreements (NDAs)
New legislation came into force in August 2025 that prevents English higher education providers, such as universities, from entering into NDAs with staff, students, members or visiting speakers in relation to bullying or harassment, sexual abuse or sexual harassment.
The Employment Rights Bill will also make void any contractual provision that seeks to prevent a worker from disclosing or alleging any relevant harassment or discrimination. This will effectively ban the use of NDAs to silence harassment and abuse, which will have an impact on the use of settlement agreements in settling workplace disputes.
If you need help to navigate these changes, please get in touch with our Employment Law team.
