16 November 2016
A recent survey found that around one third of the working population was the victim of bullying with around 60% being fearful of raising the issue.
There is, perhaps surprisingly, no legal definition of bullying. The ACAS guidance document in this area notes that bullying is a widely defined concept and can encompass offending, intimidating, malicious and insulting behaviour, abuse or misuse of power through means that undermine, humiliate, degrade or injure a person. It is possible for bullying to be done by an individual or group and it can be obvious or insidious. It is unwarranted and unwelcome.
Examples within the ACAS document include spreading malicious rumours or insults, picking on someone, excluding or victimising a person, unfair treatment, misuse of power, unwelcome advances, displaying offensive materials, making threats or undermining somebody. Where an environment is created which relate to one of the relevant protected characteristics, such as disability, race, sexual orientation etc, such behaviour could amount to unlawful harassment.
Unlawful harassment is unwanted conduct related to one of the relevant protected characteristics which has its purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading or offensive environment.
Therefore bullying in the workplace can potentially be unlawful if it amounts to unlawful harassment. Where it falls short of satisfying the definition under the Equality Act, whether or not the behaviour is lawful depends upon the circumstances.
Where an individual has requisite continuous service it may be possible for that individual to resign and claim constructive unfair dismissal (if the behaviour amounts to a breach of the contract of employment, such as the implied term of trust and confidence), or where the employee suffers loss as a result of the employer’s failure to look after the individual’s health and safety, there may be a claim for damages. It is also possible that the health and safety rules may have been infringed which could lead to other consequences.
Workplace bullying can be complex with debilitating effects upon the victim. Employers can suffer in a number of ways where such behaviour exists, whether as a result of staff loss, demotivation, stress, absence or an impact upon productivity.
ACAS guidance emphasises the need to create and foster a culture which is open and transparent. Employers should consider introducing an anti-bullying policy which sets out the employer’s approach. Staff should know what is and what is not acceptable and what the employer’s approach to and position on bullying is. Sometimes bullying can be perceived by an individual to exist rather than be intentional on the part of the alleged perpetrator. This gives rise to other issues and employers should allow the alleged victim to the raise the issues to ensure the employer can investigate and the alleged perpetrator can understand the impact their behaviour is having, even if bullying was not intended.
Employers should consider the range of “tools in the toolkit” to deal with these issues, including the normal grievance and disciplinary policies, an anti-bullying policy together with the opportunity for counselling and/or mediation.
Ultimately the employer should lead by example. Staff should be instructed to act appropriately, whether in managing staff or otherwise, and complaints should be dealt with fully, consistently and fairly.
It can be difficult on occasions given the pressured working environment to avoid difficult working relationships. Nevertheless the benefit of ensuring that staff can work safely and productively cannot be underestimated.
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.