Bullying and harassment: NHSScotland PIN policy

3 Legal framework and relevant legislation

The general legislative framework that underpins workplace dispute resolution (which would include complaints of bullying and harassment) changed as a result of the Employment Act 2008¹⁴. The act moves the focus for employers away from adherence to the strict former three-stage process towards the new ACAS Code (2009)¹⁵.

The Code emphasises the importance of fairness from both employer and employee and encourages resolution of disputes via informal means wherever possible.

As the Code is implemented, organisations will be identifying and utilising informal means of dispute resolution, such as mediation, far more frequently. A report into the role and effectiveness of mediation is available on the Staff Governance website¹⁶.

The relevant legislation which may apply in cases of bullying/harassment is detailed below. It should be noted that there is no one specific piece of legislation that deals with bullying/harassment at work.

3.1 Harassment

Equality Act 2010¹⁷

Harassment on the basis of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation is covered under the Act. Individuals are protected from harassment both while applying for a job, during it, and in some cases after the working relationship ends (for example in terms of the provision of a reference). Harassment does not have to be directed at the individual who complains, if it creates an environment that the individual finds intimidating, hostile, degrading, humiliating or offensive. The Act also covers harassment coming from a third party (a customer, for example), where the employer would be liable if it has happened on two or more occasions, they knew that it had happened and had done nothing to stop it. The Employment Statutory Code of Practice¹⁸has been developed, and is designed to provide detailed explanations of the provisions in the Act and to apply legal concepts in the Act to everyday situations.

Trade Union & Labour Relations (Consolidation) Act 1992¹⁹

There is also protection for people against harassment on the basis of their membership or non-membership of a trade union.

3.2 Bullying

The legal position with respect to bullying is more complex as there is no separate piece of legislation which deals with workplace bullying in isolation. Bullying might be part of discriminatory behaviour, or related to a myriad of different legal principles, for example:

• Breach of contract - usually breach of the implied term that an employer will provide reasonable support to employees to ensure that they can carry out their job without harassment and disruption by fellow workers;
• The common law responsibility to take care of the safety of workers;
• Employment Rights Act 1996²⁰ - for example, constructive unfair dismissal;
• Personal injury protection involving the duty to take care of workers arising out of the law of tort;
• Health and Safety at Work etc. Act 1974; ²¹
• Trade Union and Labour Relations (Consolidation) Act 1992²² - dealing with special types of intimidation etc.;
• Protection for whistleblowers under the Public Interest Disclosure Act 1998²³;
• Criminal Justice and Public Order Act 1994²⁴;
• Public Order Act 1986²⁵;
• Protection from Harassment Act 1997²⁶;
• Human Rights Act 1998²⁷.

3.3 Other forms of discrimination

There are other areas of employment legislation where discrimination based on the specified characteristic is unlawful, albeit such legislation does not make specific reference to bullying or harassment.

Rehabilitation of Offenders Act 1974²⁸
Essentially considers detrimental treatment of employees with spent convictions as similar to a 'discriminatory treatment'.

Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000²⁹
Make it unlawful for part-time workers to be treated less favourably than full-time workers.

Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002³⁰
Fixed-term employees now have the right not to be treated less favourably than full-time employees.