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By Spencers Solicitors

  Simon Turton    
  November 16, 2021

Bullying in the Workplace

Given the amount of time people spend at work, it’s not surprising that workplace bullying is commonplace. This year, allegations of workplace bullying hit the headlines when allegations of bullying were raised against Carrie Symonds and Meghan Markle.

Bullying in the workplace

Last year, it was widely reported that the Home Secretary, Priti Patel, had been the subject of a Home Office enquiry following allegations that she had bullied former chief civil service, Sir Philip Rutnam. News broke earlier this year that Mr Rutnam had agreed to settle his claims for a reported £340,000 in addition to his legal costs. Whilst not all allegations of bullying will result in such large damages (indeed this case is an exception as opposed to the norm) it is a timely reminder of the consequences for employers not being proactive at managing bullying in the workplace.

Workplace bullying is alarmingly common. This was highlighted in a CIPD report from January 2020 which noted that 15% of workers had experienced bullying in the workplace in the last three years. However, despite bullying gaining more mainstream attention, in addition to a shift in employer’s attitudes towards taking a more sensitive approach to bullying, it is still a serious problem in many workplaces throughout the UK.

What is bullying?

There is no legal definition of bullying contained in any employment statutes. Instead, the Equality Act 2010 provides a definition of “harassment” as:

“Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for that individual”

However, the above only applies to issues with discrimination and therefore requires there to be a protected characteristic involved (e.g. the harassment is due to a person’s gender). This does not apply to what people would consider “general” bullying and therefore Acas provides some additional clarity and describes bullying as:

“Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the resilience”

It is worth noting that often bullying and harassment are often used interchangeably to describe issues in the workplace and quite often definitions of bullying are used to show a form of harassment.

Examples of Workplace Bullying

Given there is no legal definition of what bullying actually is, together with the fact that bullying can often be viewed differently from one individual to the next, some useful examples of workplace bullying are:

  • Being shouted and/or sworn at;
  • Being picked on or frequently criticised;
  • Being treated different to other colleagues;
  • Being ostracised from work social groups;
  • Inappropriate comments; and
  • Threatened with dismissal.

In addition to the above classic examples of bullying, as social media and electronic communications become more prevalent in the workplace, together with the increased shift to working from home following the Covid19 pandemic, it is also important to consider examples of cyberbullying. This could include:

  • Not being included in group chats when all other colleagues are (for example a WhatsApp group for a particular department)
  • Sending inappropriate instant chat messages
  • Constantly talking over someone in a video call
  • Sending abusive emails to colleagues

Employer’s Liability

Although an employee cannot generally bring a claim for the ordinary understood forms of bullying, there are claims that employers will be liable for, due to certain behaviour carried out by their employees whilst employed. If bullying exists in the workplace, employees can bring the following claims:

Discrimination

If the bullying and/or harassment is due to a protected characteristic (age, disability, gender reassignment, marital status/civil partnership, pregnancy and/or maternity, race, religion or belief, sex or sexual orientation), then an employee has recourse to the employment tribunal for a discrimination claim. For example, if a woman starts to receive inappropriate sexual comments and/or advances from another colleague, this could lead to a claim for sexual harassment. This can result in an expensive tribunal claim being brought against the employer which could result in further expense if the claim is successful.

Constructive Dismissal

Although we have outlined above that there is no general claim for bullying in the ordinary sense of the word, if an employee raises a concern of bullying and this is not taken seriously or, not acted upon and the bullying continues, it could lead to an employee feeling their position with the employer is no longer tenable and resigning as a result. If the employee has worked for the employer for two or more years, they could pursue a claim in the employment tribunal for constructive dismissal citing that the employer has breached the implied term of trust and confidence. This claim works in the same way as unfair dismissal and the employer could be liable for the employee’s loss of earnings if the claim is successful.

Protection from Harassment Act 1997

Whilst mainly used to prevent harassment outside the workplace, such as stalking, the act does protect people from bullying at work if they have been subjected to more than one incident of harassment from a person that knew, or should have known, their conduct amounted to harassment. This claim is different to discrimination in that it does not have to be on the grounds of a protected characteristic, however is a civil claim and cannot be brought in the employment tribunal and is generally much rarer than the above two claims in an employment context.

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Preventing Workplace Bullying

Perhaps of more concern than potential litigation, workplace bullying can also lead to other issues with their employees. It seems obvious to say, but bullying can destroy morale in the workplace which can in-turn lead to performance issues, increased sickness absence, high staff turnover which in-turn increases recruitment costs and also possible reputational damage if matters become public knowledge, as it previously did for Sports Direct . A recent study conducted by Culture Shift, found that 41% of people who were asked confirmed that a toxic work environment impacted their productivity, with a further 42% of people saying had left a job due to a negative workplace culture.

Whilst it is an unfortunate reality that workplace bullying will always exist, employers can take a proactive approach to minimising workplace bullying in a number of ways. First and foremost, an employer should have a clear and easily accessible anti-bullying policy in place. The policy should give clear examples of what can amount to bullying and any consequences if an employee is found to have bullied a colleague. Employers should also set out a clear procedure, often separate to a grievance procedure, on how to report bullying and how such reports will be investigated.

Given the changing nature of the workplace bullying policies should be reviewed up updated on a regular basis to ensure they remain current. This is now even more important given the increasing shift to working from home, and it would behove an employer to review their policy now, if the haven’t done so since the COVID-19 pandemic. It may also be useful to offer training to managers on how to deal with workplace bullying to ensure they treat such incidents with the care and importance they deserve.

Complaints about bullying should always be taken seriously and dealt with as quickly as possible. It is important that employees see that any complaints of bullying in the workplace are being dealt with and not just ignored to ensure that a toxic workplace culture doesn’t arise which can lead to the morale and productivity issues outlined above. Dealing with complaints in a timely and appropriate manner will also assist an employer in the event any claims are brought for harassment later on as an employer will be able to raise the defence that it took all reasonable steps to prevent the harassment.


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