Bullying: a curse on working life

One might be naive in thinking that the tactics of bullies are confined to the school playground, and once you reach the ripe age of adulthood and working life, you’ll never be faced with incidents of bullying again. Sadly, as many employees and all employment solicitors can attest, bullying remains a prevalent workplace issue, and as we have now seen, remains an issue even in the highest positions within Government.

Last month the investigation report into Dominic Raab upheld two complaints of bullying against him; a week later more emerged on the toxic, bullying culture at the CBI, following the dismissal of its former director general. Most recently, we’ve seen reports of a culture of misogyny and bullying at Police Scotland, showing that an organisation can have all the right policies in place, but these are not worth anything if they’re not applied and enforced. Here we look at the legal position around bullying in the workplace and what steps employers should be taking to address this.

What behaviour counts?

Harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A single incident can amount to harassment. Bullying is harder to define than harassment, as there is no specific legal definition or prohibition, which is a difficulty we have seen commented on in relation to the Raab investigation and resignation. Bullying can be defined as offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. It can take the form of physical, verbal or non-verbal conduct.

An employer may be liable under the Equality Act 2010 if it fails to protect its employees and other workers from harassment in the course of their employment. This includes harassment by members of staff and, in some cases, by third parties. In addition, employers have several implied duties in the employment contract, including a duty to provide a safe and suitable working environment, a duty not to destroy mutual trust and confidence, and a duty to provide redress of grievances. The law does not require an employer to have a written policy on bullying and harassment, although many do have such a policy in recognition of the sensitivity and seriousness of such issues, and these policies should dovetail with disciplinary and grievance policies in place as well.

In addition, an employer could be faced with grievances or constructive dismissal claims by employees who feel they have not been protected or had any complaints addressed seriously.

Guidance on investigations

Where an allegation of bullying has been made, an employer should investigate this in line with the appropriate policy.

At the outset, the terms of reference of an investigation should be set out and agreed by everyone involved so that the investigator’s role and purpose are clear. Acas guidance on workplace investigations suggests these terms should factor in the following:

• what the investigation is required to examine;
• whether a recommendation is required;
• how the findings should be presented – for example, an investigator may be required to present their findings in some form of investigation report;
• who the findings should be reported to and who to contact for further direction if unexpected issues arise or advice is needed. This might be HR or a similar experienced and informed source.

An internal workplace investigation should ideally be conducted by someone independent to the allegations with sufficient skill and experience. Where there is not someone independent internally to carry out the investigation, external help can be sought from HR professionals or solicitors. It is also important to think about the wider process that the investigation might lead to, and if it could result in a disciplinary hearing and appeal, having someone independent to deal with the investigation could be important. The timeframe in which an investigation will be carried out is crucial, and from experience, these tend to take longer than originally intended. Employers should consult their policies to see whether any specific timeframes are set out there, and inform those affected if the timeframe may not be met.

Outcomes

Once a workplace investigation has been completed, the outcome is usually presented in a report that sets out both the findings and recommendations. This may lead to further action being taken, for example under the organisation’s disciplinary policy, or you may have an employee who resigns following release of the report.

Ultimately, the main takeaway from this and the recent public cases about bullying is that an employer should do all it can to try to prevent bullying happening in the first place.

Ensuring that staff are aware of their legal obligations, and putting in training about these issues, are key to clamping down on bullying behaviour – as is, in the event of an investigation being needed, taking steps to ensure that those carrying it out know what is required of them.