Workplace bullying has been placed under the media spotlight over the course of the last week, with the release of the government’s report into the behaviour and conduct of Dominic Raab, who resigned as Deputy Prime Minister and Justice Secretary in light of an inquiry finding he had been responsible for behaving in an “aggressive” and “intimidating” way towards civil servants and officials.
“Bullying” is a word which is commonly used by employees complaining about the culture of their workplace. It is a term which many people use without really considering what it means, what rights employees have where they have been subjected to bullying or what obligations an employer may have to address behaviours which create an inappropriate workplace culture.
This is an important subject as allowing a bully or bullying culture to go unchecked can have a significant impact on a business. What then are the 5 key things to be aware of when having to deal with bullying in the workplace?
1. There is no statutory definition of bullying
Bullying is not a term used in any employment law statute. As such, when allegations of bullying are being considered, employers should be taking account of the ordinary meaning of the word.
Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority, but can include both personal strength and the power to coerce through fear or intimidation.
Bullying may include overbearing and intimidating levels of supervision or inappropriate derogatory remarks about someone’s performance. However, legitimate, reasonable and constructive criticism of a worker’s performance or behaviour, or reasonable instructions given to workers in the course of their employment, will not amount to bullying on their own.
Employers should however be slow to be over-prescriptive in deciding whether a certain type of behaviour amounts to bullying or not.
2. A one-off act can be sufficient to constitute bullying
In submitting his resignation letter, Mr Raab highlighted that only two allegations had been upheld against him. He was also critical of the report’s findings indicating that:
“In setting the threshold for bullying so low, this inquiry has set a dangerous precedent.”
However, when taking account of any definition of “bullying”, there is no requirement for there to be a course of conduct or acts which extend over a period of time. A one- off act or incident can amount to bullying and it is not a defence or answer to an allegation of bullying that something only occurred once.
3. Bullying can occur even when the perpetrator did not intend their behaviour to have that effect
Often, where an employee is alleging they have been bullied, they will also state they have been subject to harassment. In employment law terms, harassment ordinarily has a very distinct meaning and refers to unwanted conduct related to a protected characteristic, as defined by the Equality Act. Bullying does not need to be on the basis of any such protected characteristic. However, the approach taken to claims of harassment under the Equality Act mirrors that which is taken to complaints of bullying. Bullying can occur both where the offending conduct had:
- The purpose; or
- The effect
of creating an unwelcome working environment for the employee. However, it must be reasonable for the employee to form the view that the behaviour in question amounts to bullying.
It is also important to bear in mind that even if an employee who complains about certain behaviour as amounting to bullying was not the intended victim of that conduct, this would not of itself prevent them from pursuing a complaint that they have been the victim of bullying.
4. There is no distinct bullying claim open to employees to raise before the Employment Tribunal
UK employment law does not recognise a stand-alone claim for workplace bullying.
The risk to employers will arise through other types of claims, the most common of which are:
- A claim for constructive unfair dismissal. To succeed with such a claim, an employee needs to show:
- Their terms and conditions of employment have been breached to a material extent;
- They have resigned in response to that breach; and
- They have not delayed in tendering their resignation.
Perhaps the most common type of constructive dismissal claim proceeds on the basis that an employee has been subjected to workplace bullying and this is asserted as being a breach of the implied term of trust and confidence. Case law clearly shows that tribunals and courts have been open to accepting there are a number of implied duties which an employer owed to an employee which fall under the general umbrella of the implied term of trust and confidence and these include:
- Health and safety duties
- The duty to provide a suitable working environment; and
- The duty to provide reasonable support.
It is easy to see various situations arising where bullying behaviour could jeopardise these implied rights upon which employees are entitled to rely. If that conduct is serious enough and the employee feels they have not been properly protected by their employer, then it may well be an individual would be prepared to resign and pursue a constructive unfair dismissal claim.
- Where the bullying conduct is said to relate to an individual’s protected characteristic, then this could lead to claims of discrimination and/ or harassment under the Equality Act.
While these are the only pure employment law claims which an employee could consider pursuing, it is worthwhile remembering that the civil courts may also offer rights which employees could pursue where they believe their rights have been breached by workplace bullying. The Protection for Harassment Act 1997 has also been relied upon by employees who asserted they had been bullied in the workplace. While originally introduced to stop and/ or prevent stalking, the courts have confirmed the Act can also be relied upon in an employment context; that harassment for the purposes of the Act does not need to be on the basis of a protected characteristic; and employers can be vicariously liable for the acts of its employees which have taken place in the workplace. Cases brought under the Act are rare, but it is a possibility. A claim under the Act would not require the employee to have resigned and they could bring a claim on the basis of any damage or loss which they assert bullying behaviour has caused them.
5. Employers should ensure they have a policy to allow them to deal with any workplace bullying effectively, fairly and transparently
Of course, the risk of legal claims is not the only reason why employers may wish to properly police and manage bullying in the workplace, whether as a one-off incident or where a problematic culture has developed. Such an environment will breed problems, lead to a disincentivised workplace and likely lead to good employees moving on to a better employer.
As such, it is important to ensure that any workplace bullying is dealt with quickly and effectively to stop the wrong culture developing in the workplace. By putting in place an anti-harassment and anti-bullying policy employees will be given clear guidance on:
- What types of behaviour are acceptable.
- Where any individual steps beyond that line, how an employee may complain about the unwanted conduct of a colleague.
- What steps the employer will take to investigate allegations of workplace bullying.
- What likely consequences will be for any employee who is found to have engaged in such behaviour.
Many people take a subjective view of bullying and what is offence to some, may be simply shrugged away by others. Mr Raab himself seems to acknowledge this, being quoted as stating he would apologise to anyone who he described as having “subjective hurt feelings.” This highlights just how difficult and polarised situations can become where allegations of bullying are made. That is why employers should be on the front foot to deal with such situations and ensure they are kept under a degree of control before more serious and endemic issues arise.
If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.