Bullying, Harassment & Stress

General / 25 April 2016
Bullying, Harassment & Stress

The Copeland Ashcroft Law Team recently presented a seminar roadshow on the crossover between employment law and health and safety obligations, and one of the areas of focus in this presentation was the management of work related bullying, harassment, and stress.  This article summarises some of the “need to know” basic tips from the roadshow.

With the recent introduction of the new Health and Safety at Work Act 2015, employers have an obligation to take all reasonably practicable steps to ensure that the health and safety of workers is not put at risk by identifying and managing hazards.

It is important for employers to be aware that hazards in the workplace can include a person’s behaviour and they have a responsibility to take steps to reduce the impact a person’s behaviour has in the workplace.   Some examples of behaviours that have the potential to cause harm are work related stress, bullying and/or harassment.

Employers also have an obligation to act as a fair and reasonable employer under the Employment Relations Act 2000 and ensure all actions taken are justifiable and adhere to the duty of good faith.

What is work related stress?

Stress is not clearly defined but is generally accepted to be “an awareness of not being able to cope with the demands of one’s environment”.  It is not a medical diagnosis, but it may cause or be the result of workplace hazards, as it has the ability to affect an individual’s physical and mental wellbeing.

Stress can be caused by a vast number of personal factors such as death of a loved one, breakdown of a relationship etc, as well as work related factors such as work load or work relationships.

It would be impossible for an employer to eliminate all sources of stress in the workplace, but they have a responsibility to support an individual whose alleges they are stressed as a result of the workplace and to manage the issues raised by the individual as they would any other health and safety risk.

What are bullying and harassment?

Both bullying and harassment must also be managed in the workplace.  If an employee claims they have been bullied and/or harassed whilst at work, the employer has a responsibility to investigate the issues raised and should do so promptly, using an independent investigator where appropriate.  If bullying and/or harassment has occurred, the employer needs to act as a fair and reasonable employer according to the circumstances.

Worksafe has defined bullying as:

“Repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Repeated behaviour is persistent and can involve a range of actions over time.

Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable.It includes victimising, humiliating, intimidating or threatening a person.”

“Harassment” is defined in the Harassment Act 1997, and a definition of harassment may be included in a policy document.  However, the behaviours many employers used to think of as harassment are now generally subsumed by the definition and relatively new term “bullying”.

Sexual and racial harassment are separately defined in the Employment Relations Act 2000 and Human Rights Act 1993 as follows:

Sexual harassment:
Language, visual material or physical behaviour of a sexual nature which is unwelcome or offensive to an employee and which is either repeated or so significant that it has a detrimental effect on the employee’s employment, job performance or job satisfaction.

Racial Harassment:
Unwelcome language, visual material or physical behaviour that directly or indirectly expresses hostility against, brings into contempt, or ridicules an employee on the grounds of their race, colour, ethnicity or national origin, which is offensive or hurtful to the employee and which is either repeated or so significant that it has a detrimental effect on that employee’s employment, job performance or job satisfaction.

Employers are required to investigate complaints of sexual and racial harassment as well, and to take steps to make sure the behaviour complained of is not repeated.

Stress, bullying and harassment are, by their nature, tricky issues to manage and employers have responsibilities under multiple pieces of legislation in respect of each.  We recommend clear policies with definitions of these terms as well as processes to raise and address complaints as best practice, and that employers seek advice if these issues arise, to ensure a planned and pragmatic strategy to best manage the various risks.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.

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