Tackling workplace toxicity

After law firm Hogan Lovells launched an anonymous reporting tool on microaggressions, Karen Holden from A City Law Firm looks at how employers can create a positive workplace culture.

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In today’s interconnected work environment, whether through face-to-face interactions, virtual meetings on Teams, or other communication platforms, issues such as derogatory comments, bad-mouthing employers and management, bullying and discrimination are prevalent. These behaviours can contribute to a toxic workplace environment that affects morale, productivity and the overall well-being of employees. It is also a real litigious nightmare for employers.

So what are employer’s responsibilities and liabilities when it comes to microaggression and toxic environments. and what they can do to protect themselves and create an environment and culture that is
welcoming and safe?

Understanding the legal framework

Under UK law, various acts and regulations address workplace misconduct and aim to protect employees from harassment and discrimination. Key legislation includes as an example:

 The Equality Act 2010: This act prohibits discrimination, harassment and victimisation based on protected characteristics such as age, gender, race, disability and sexual orientation.
 The Employment Rights Act 1996: This act provides employees with protection against unfair dismissal or whistleblowing about unfair treatment and sets out the rights and responsibilities of both employers and employees.
 The Health and Safety at Work Act 1974: This act imposes a duty on employers to ensure the health, safety and welfare of their employees at work.

The role of robust employment policies

Transparent and comprehensive staff handbooks, staff policies and employment contracts are essential tools for employers to establish clear expectations and guidelines for behaviour. These documents should outline the company’s stance on:

 Anti-bullying and harassment, clearly defining what constitutes bullying and harassment, and provide procedures for reporting and addressing such incidents. They should also confirm how and who to and offer a safe forum to do so;
 Social media and phone usage, setting boundaries for appropriate use of social media and mobile devices during work hours to prevent the spread of harmful content and gossip, which may need to consider monitoring the same.
 Disciplinary actions, detailing the consequences of breaching company policies and the steps the company will take to address misconduct.
 Grievance procedures containing key details on how to raise one, who to and how the company will support an investigation and resolution.

Building a positive employment culture

Creating a positive workplace culture that protects the employer involves proactive measures:

1. Training and awareness: Employers should conduct regular training sessions on anti-bullying,
harassment and discrimination policies to ensure all employees understand their rights and responsibilities and focus on management and HR as well.
2. Open communication channels: Employers should encourage employees to voice their concerns and
report inappropriate behaviour without fear of retaliation. They could have forums, workshops or confidential online means to share concerns.
3. Consistent and transparent enforcement: Employers should apply policies consistently and fairly to all
employees, regardless of their position within the company.

Employer liability and employee responsibilities

Employers can be held liable for the actions of their employees if they fail to take reasonable steps to prevent and address workplace misconduct. This includes ensuring that policies are in place, adequately communicated and enforced.

Employees also have a responsibility to foster a respectful and inclusive work environment. They should be encouraged to hold each other accountable and report any instances of bullying or discrimination.

What employers can do in reality:
 Limit equipment use and forums where toxic behaviour might occur
 Monitor and regulate the use of company-provided communication tools.
 Implement software that flags inappropriate language and content.
 Establish clear reporting mechanisms for employees to report misuse of communication platforms.

Understanding vicarious liability

An important aspect for employers to understand is the concept of vicarious liability. This means that an employer can be held legally responsible for the actions of their employees if those actions are performed without their knowledge or at a staff party, for example, or on closed forums. This includes instances of bullying, harassment or discrimination. If an employee engages in misconduct that leads to a hostile work environment, the employer may be liable even if they were unaware of the behaviour.

Employee claims against colleagues for harassment or bullying

Employees in the UK can issue claims against colleagues for harassment or bullying under the Equality Act 2010. This act protects employees from harassment related to protected characteristics such as age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

To bring a claim, an employee must demonstrate that the conduct in question created an intimidating, hostile, degrading, humiliating or offensive environment for them. To initiate a claim, the employee should first seek to resolve the issue internally through the company’s grievance procedure. If the issue remains unresolved, the employee can file a claim with an employment tribunal. The implications for the accused employee can be severe, including disciplinary action by the employer and potential personal liability for damages. For the employer, failing to address harassment and bullying claims can lead to reputational damage, financial penalties and a toxic work environment that affects overall productivity and employee morale.

Addressing grievances of bullying or harassment

When an employee raises a grievance about bullying or harassment, employers must take prompt and appropriate steps to address the issue. The process typically involves the following steps:

1. Initial Meeting: Arrange a meeting with the complainant to understand the nature and specifics of the grievance. Ensure this is done in a confidential and supportive manner.

2. Investigation: Conduct a thorough investigation, which may include interviewing witnesses and reviewing relevant documents or communications. Employers may choose to bring in a neutral third party to ensure objectivity.

3. Support for the complainant: Allow the complainant to have a colleague or a trade union representative present during meetings. Provide access to counselling services if needed.

4. Disciplinary action: If the investigation finds evidence of bullying or harassment, take appropriate disciplinary action against the accused. This can range from a formal warning to dismissal in cases of gross misconduct. Warnings typically remain on an employee’s file for a specified period, often six to 12 months, depending on the company’s policy.

5. Resolution meeting: Hold a resolution meeting to inform the complainant of the findings and the actions taken. Ensure that the outcome is clearly communicated and that the complainant feels supported.

6. Preventative measures: Implement training and policy updates to prevent future incidents and foster a respectful workplace culture.

Employers must handle grievances with sensitivity and fairness, ensuring that both the complainant and the accused are treated with respect throughout the process. Failure to adequately address bullying or harassment can lead to legal ramifications, damage to the company’s reputation, and a decline in employee morale.

Build a positive workplace culture

By developing and maintaining robust staff handbooks, policies and employment contracts, employers can create a structured and transparent environment that mitigates the risk of workplace toxicity. They must monitor , review and enforce as well as train and react.

This not only protects employees but also fosters a positive and productive workplace culture.

*Karen Holden is founder of A City Law Firm. If you need assistance in crafting these essential documents and ensuring compliance with UK law, A City Law Firm’s team of experienced solicitors can help.

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