Bullying and harassment: NHSScotland PIN policy

This Partnership Information Network (PIN) policy is not in use after 1 March 2020. Policies in force after 1 March 2020 are on https://workforce.nhs.scot/policies

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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:

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.

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