Is your business doing enough to prevent bullying?

By Nicola Smyrl

Partner

10 October 2023

Article Insights

October is anti-bullying month and campaign groups are urging organisations to consider ways to tackle bullying.

Bullying in the workplace is an area where, following high profile public incidents such as the investigation into the conduct of Dominic Raab, employees are becoming more aware of their rights.

Taking into account that ACAS estimates that conflict at work costs British businesses approximately £28 billion per year, employers should be aware of the issues that may be caused by bullying and have appropriate mechanisms in place to recognise and address bullying when it arises.

What is bullying?

There is no legal definition of “bullying” in employment law. However, it is a commonly used term which can lead to complex legal issues.

Where an employee feels that they are being bullied, this may lead to the employee raising a grievance.  Employers are obliged to investigate any issues raised as a grievance and provide the employee with an outcome.  Where a grievance about bullying is very serious or cannot be resolved, the employee may also bring claims in the employment tribunal.

Employment Tribunal claims

There is no specific claim which can be brought in the employment tribunal for “bullying”  However, the actions which amount to bullying can be used as the basis of various employment tribunal claims.  The most common claims in these circumstances are for discrimination and constructive unfair dismissal.

Subjecting an employee to bullying may mean that the employer has seriously breached the implied term of mutual trust and confidence, entitling the employee to resign and treat themselves as having been dismissed for the purposes of a constructive unfair dismissal claim.

Additionally, where bullying is related to a protected characteristic of an employee, this can lead to claims for discrimination under the Equality Act 2010.  Commonly, bullying can be used as the basis for a harassment claim where the employee argues that the bullying amounts to unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Whilst these types of claims can be expensive and time consuming to deal with, there is also the real risk of serious reputational damage.  At a time when recruitment is a problem for many employers, and employees are now commonly sharing their experiences at work online, presenting the business in a positive light is increasingly important.

What should employers do?

Taking into account the potentially serious consequences of bullying in the workplace, employers would be well advised to take steps to ensure that all staff are aware that bullying will not be tolerated at work.

Policies and procedures should be in place to assist the business in recognising and tackling bullying when it arises.  An employer who is able to demonstrate that they have taken practical steps to tackle bullying will be in a stronger position to defend any employment tribunals which may arise based on bullying.

Steps to consider taking include:

• Putting in place appropriate policies and procedures to include an anti-harassment and bullying policy and an equal opportunities policy as a minimum. There should be clear examples of what may amount to bullying and a clear process to raise concerns.
• Reviewing any existing policies and procedures on discipline and grievances to make sure that they address the issue of bullying. For example, does your grievance policy specify who the employee can direct their grievance to if they wish to complain about the actions of their manager?  Does your disciplinary procedure include bullying of others as an example of serious misconduct?
• It is not enough to have policies and procedure in place. Have you made staff aware of them and provided training on the issues that they are intended to cover?  Have managers received training on how to handle these issues in practice?
• Be alert to managers dismissing bullying at “banter”.  In the case of Hurley v East Sussex Healthcare NHS Trust a worker subjected to an “extremely stressful” prank was awarded almost £10,000 by an Employment Tribunal .
• Ensure that your policies and procedures take in account the growing issue of cyber bullying. A 2020 study The Chartered Institute of Personnel and Development, showed 10% of workers reported being bullied by email, phone or social media. Consider including a section in IT and social media policies on expected standards of behaviour.

Future developments

Taking steps now  to identify and prevent bullying is likely to become increasingly relevant.  In the summer, Rachel Maskell (Labour and Co-operative MP for York Central)  presented The Bullying and Respect at Work Bill, and it has received cross-party support.

The proposed legislation would introduce a statutory definition of bullying, to enable claims related to workplace bullying to be considered at an employment tribunal. It would also bring in a new respect at work code which will set minimum standards for respectful work environments. Formal mechanisms for reporting and investigating bullying at work would also be introduced, and the Equality and Human Rights Commission would be given powers to investigate claims of bullying cultures and to take enforcement action if appropriate.

Whilst this Bill is at a very early stage, taking action now to prevent bullying will not only protect your business under current legislation, it will also help to ensure that your business is ready for these future changes.

How can Taylor Walton help you?

Taylor Walton’s employment law team is able to assist employers and senior executives with concerns relating to bullying in the workplace, or any other employment law matters, and can be contacted here.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.