Bullying in the Workplace
In this blog, we consider how employers can define bullying, spot bullying behaviour by their staff and take effective steps to address it early.
How to define bullying behaviour?
There is no specific legal definition of bullying, which means it is difficult for employers to clearly understand the behaviours, and patterns of behaviour which are generally understood to amount to bullying.
Employers often adopt a broad definition in their anti-bullying policies, although it is often set out without due regard to the employer’s industry, working environment, culture or practices.
According to ACAS in its guide to harassment and bullying in the workplace, bullying can be described as unwanted behaviour from a person or group that is either:
“offensive, intimidating, malicious or insulting”
“an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”
This is a good starting point for any internal policy, training or guidance. However, most anti-bullying policies would benefit from examples of prohibited behaviours which relate to the employer’s particular business.
How can we spot bullying behaviour?
ACAS makes clear that bullying can be a regular pattern of behaviour or a serious one-off incident. The guidance gives examples such as:
- spreading malicious rumours about someone
- consistently putting someone down in meetings
- deliberately giving someone a heavier workload
- excluding someone from team social events
- consistently undermining a manager
- posting humiliating, offensive or threatening comments or photos on social media
Employers should be on the lookout for patterns of inappropriate behaviour across the business.
The dangers of leaving bullying unchecked:
Although there is no express statutory prohibition against bullying in the workplace, employers can still face legal liability if they do not take care to monitor and address any behaviour which might amount to bullying.
For example, affected employees could bring potential legal claims of harassment and discrimination on the basis of a protected characteristic under the Equality Act 2010, personal injury, and/or constructive unfair dismissal arising from the employer’s fundamental breach of contract in failing to prevent the bullying:
If bullying is related to any of the nine protected characteristics under the Equality Act 2010 it could amount to harassment or discrimination, for which the potential compensation awarded by an employment tribunal is uncapped and can include an award of injury to feelings of up to £56,200 (depending on the seriousness of the behaviour).
An employer has a duty of care under common law to provide a safe and stress-free place of work for all staff. Prolonged bullying can deteriorate an individual’s physical and mental health, and potentially give rise to a personal injury claim. A victim of bullying could be signed off by his or her GP with work-related stress and anxiety, resulting in long periods of absence from work. For an employee to have a claim for personal injury, they must show they have a medically recognised psychological injury or illness. However, the court has found that an employer will only be liable for an employee’s ill health in the circumstances if it is on plain notice of an employee’s stress, or vulnerability to stress, and then fail to address the issue. Compensation may be significant: the 2022 Judicial College Guidelines provide guidelines of average compensation for severe psychiatric damage from stress at work of between £54,830 and £115,730.
Where an employee feels they have no choice but to resign because of bullying, this could give rise to a constructive dismissal claim based on the employer’s breach of the implied term of mutual trust and confidence. Note that an employer is unable to argue in its defence that it has the same style of management as the rest of the relevant industry.
Practical steps:
Employers can focus on mitigating the risks of bullying and harassment in the workplace through a number of key steps:
- Anti-harassment and bullying policy: Employers should have an anti-harassment and bullying policy in place. This will demonstrate commitment to providing a working environment free from bullying, but also demonstrate the employer’s intention that all staff are treated and treat others with respect. The policy should ideally be non-contractual, allowing employers to keep it up to date. It should cover bullying which occurs at work and work-related events, such as business trips or social functions. The policy should define what the employer considers to be bullying, and it should cover the behaviour of staff, but also of third parties such as customers, suppliers or visitors.
- Training: Regular and effective training in relation to anti-harassment and bullying is a key component of creating a positive and inclusive workplace culture. The whole workforce should understand the contents of the policy and the employer’s behavioural expectations.
- Be pro-active: All businesses should ensure that supervisors are proactive in looking out for behaviour which may be considered bullying by the recipient. If negative behaviours are caught at an early stage, then this could prevent formal grievances or legal claims which might arise if intimidating or offensive behaviour is not challenged. As well as the general training recommended above, consider whether specific training in feedback, supervision, delegation or other management skills should be provided for managers.
- Deal with grievances and complaints promptly: When handling a bullying complaint from an employee who suffered or witnessed alleged bullying, employers should deal with the matter as quickly as possible and in accordance with internal investigation and grievance procedures. Broadly, first talk to the person raising the complaint to understand the issue and what might resolve it. Ensure that you look at the complaint in a way that is fair and sensitive to the person who made the complaint, anyone who witnessed the alleged behaviour, and the person accused of bullying. There will inevitably be sensitivities around confidentiality, the seniority of the individuals concerned, and the likely impact on other employees and the business. A key consideration will also be the necessity of taking disciplinary action against the perpetrator, if it becomes clear that they have behaved in an unacceptable way.
