Bullying in the workplace has been brought to the attention of the public again in recent weeks. This is a significant issue, with 15% of workers having experienced workplace bullying in the past three years and this has a real cost for both businesses and employees.
What does the law say?
The term “bullying” is not specifically defined in law. However, Acas describes it as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”. Bullying may also constitute harassment, which is unlawful under the Equality Act 2010 where it relates to a protected characteristic, such as age, sex or race.
The legal position on bullying is more complex as it is not dealt with by a sole piece of legislation and there is limited legal protection from bullying in the ordinary sense. The Equality Act 2010 covers bullying that relates to protected characteristics. The bullying behaviour may be covered by the Employment Rights Act 1996 where the victim suffers a “detriment” because they asserted a protected employment right, or a claim for breach of an express or implied term of the victim’s employment contract which could justify them resigning and claiming that they have been constructively and unfairly dismissed.
Is the intention of the “bully” relevant?
In harassment claims under the Equality Act, it is clear that it is the effect on the “victim” rather than the intention of the individual that is relevant to whether an employment tribunal will consider harassment to have occurred. Indeed, the legislation makes specific reference to the “effect” of the unwanted conduct, meaning that conduct will constitute harassment even where the effect was not intentional. Employment tribunals are likely to take the same approach when considering bullying.
While some alleged perpetrators of bullying may view their actions as simply being constructive criticism or firm management, the effect on the individual is very important. That said, the employee must show that it is reasonable for the behaviour to have the effect of creating that hostile environment. If other reasonable employees in that situation would not regard the behaviour as bullying then it may not be.
How can employers prevent and deal with bullying in the workplace?
Employers may find themselves liable for the actions of their employees where conduct occurs which amounts to bullying. This may extend to work-related activities, which do not occur in the usual place of work. With employees working from home due to COVID-19, bullying may take a slightly different form, particularly in relation to excessive micro-management of individuals or exclusion of them.
Employers can seek to prevent bullying in their workplace by implementing robust and well-communicated policies relating to anti-harassment and anti-bullying, alongside a clear message that inappropriate behaviour of any kind will not be tolerated. These policies should contain illustrative examples of what constitutes bullying and all employees should be made aware of the policies during their induction or other training session.
Employers should follow their policies in their response to complaints of bullying. Of concern, 24% of employees think that bullying and harassment are swept under the carpet by their organisation. Employers should take the complaint seriously and investigate it promptly and objectively. A decision can then be taken as to what the appropriate response is.
It is worth noting that in some circumstances mediation may be an appropriate way of resolving a complaint of bullying in a way that satisfies all parties.
If your organisation requires assistance with any aspect of bullying (the creation or review of policies and procedures, or advice on dealing with a complaint), please contact us.