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Joanne Mash

Article written by Joanne Mash, Solicitor, Employment department

To many, bullying and racism can be seen as the fate of the underdog but recent headlines have shown it to impact those at any level including members of the Royal family and highly regarded civil servants. Employers are being encouraged to review their policies, particularly with many of their employees working in differing environments during the current period of lockdown.

Recently Meghan Markle, the Duchess of Sussex, has spoken about the impact of perceived racism during her time as a leading member of the Royal family with Palace staff responding with claims of bullying taking place in her service. These revelations came hot on the heels of the high-profile case involving a top civil servant who claimed to have been bullied by the Home Secretary, Priti Patel, during her tenure at the Home Office.

The Palace and the Duke and Duchess of Sussex 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, the former Permanent Secretary at the Home Office, a six-figure sum has reportedly been paid to settle his employment tribunal claim. 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 include age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. It also includes pregnancy and maternity where the protection against harassment is subject to slightly different rules.

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. Otherwise, they may be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it.

Furthermore, 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, 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.. If the wrong sort of behaviour is found, it should 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” taking 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 and diversity training and bullying and 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.

If you would like to discuss your policies in further detail or require advice on equality and diversity or bullying and harassment, please email me or contact me on 020 8858 6971.