The recent investigation report prepared by Adam Tolley KC has sparked debate again about what constitutes bullying in the workplace.
The investigation looked at a number of formal complaints of bullying by Dominic Raab, the former Deputy PM during his time working as a Cabinet-Minister in different departments and found that he had committed acts of bullying. Specifically, Mr Raab’s ‘management choice’, based on his adverse view of colleagues’ work, resulted in him acting in a way that ‘was intimidating, in the sense of unreasonably and persistently aggressive conduct in the context of a work meeting. It also involved an abuse or misuse of power in a way that undermines or humiliates. He introduced an unwarranted punitive element. His conduct was experienced as undermining or humiliating by the affected individual, which was inevitable…’. He also referred to the Civil Service Code in such a way it could reasonably have been understood he was suggesting those involved had acted in breach of it.
Mr Raab, who resigned following the publication of the Tolley Report, has been critical of its findings which he described as ‘flawed’ and setting a ‘dangerous precedent’ as ‘the threshold for bullying is so low’.
Defining bullying
The Tolley Report, noted the lack of a legal definition of bullying and therefore considered, by reference principally to the High Court ruling in R v (FDA) v Prime Minister and Civil Service [2021] (that case related to complaints made against Priti Patel when Home Secretary), that for the purpose of this investigation (under the Ministerial Code) conduct would fall within the description of ‘bullying’ if it could be characterised as:
- offensive, intimidating, malicious or insulting behaviour; or
- abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.
What does employment law say?
Bullying is not a legally defined term, although employers owe a duty of care to employees to ensure, amongst other things, their safety at work. This creates a challenge for employers given the myriad forms bullying can take and in determining, for example, whether a manager’s actions constitute reasonable constructive feedback or intimidation or the subjective response of an individual employee is overly sensitive.
In the absence of a legal definition of bullying, deciding whether conduct amounts to bullying will therefore be assessed by reference to general principles and employers’ policies/procedures, leaving room for:- different interpretations; a lack of consistency; criticism; grievances; and in a worst-case scenario litigation.
As there is no free-standing basis to claim bullying such allegations are most commonly raised in ET claims as:
- acts of discrimination in breach of the Equality Act 2010 (i.e. harassment/victimisation) based on a ‘protected characteristic’ such as sex, race and age; and/or
- constituting a fundamental breach of contract (most likely based on a breach of the implied term of mutual trust and confidence) allowing employees with requisite service (over two years) to resign and claim constructive dismissal.
Such claims can be significant for employers both reputationally and financially.
What should employers do?
The Tolley Report provides some guidance for employers when dealing with tricky bullying situations, but not all the answers as it has to be borne in mind that it is a report (not a binding authority) related to very specific circumstances referenced broadly to protect confidentiality.
In the circumstances, here are our tips on some of the ways in which employers can reduce bullying (and the challenge of dealing with it) in the workplace:
- Employers should foster an empathetic/open workplace culture where employees feel able to raise complaints of bullying or harassment, and which recognises that working environments have changed/are changing and established procedures may no longer be fit for purpose
- Employers should (regularly) review or implement policies which deal with bullying to ensure they are clear and comprehensive. Policies should:-
- include a definition of bullying – it may be of interest to note, given the terms of the Tolley Report, that ACAS guidance describes bullying widely as “offensive, intimidating, malicious or insulting behaviour and/or an abuse or misuse of power that undermines, humiliates or causes physical or emotional harm …”
- provide examples of what would constitute bullying, including those related to remote / flexible working which is a relatively new issue
- contain a clear zero-tolerance approach to bullying behaviour
- set out the process that will be followed to investigate bullying behaviour and how staff complaining about bullying will be supported
- address confidentiality (the process of investigating bullying should be conducted on a strictly P&C basis – this is essential to protect all staff involved)
- provide guidelines for investigators on conducting an effective investigation process, which should be focused on making findings not decisions about the outcome
- provide guidelines for managers (who should be completely independent) making decisions in cases where allegations of bullying are dealt with formally, including factors to consider, such as the nature and seriousness of the conduct; the intentions of the alleged perpetrator; any mitigation and different levels of sanction available
- ensure managers understand the importance of documenting discussions/steps taken/decisions made in relation to bullying cases.
- When allegations of bullying are raised, employers should take them seriously and take swift steps to investigate them in line with their relevant policy/procedure;
- Employers should invest in regular training for staff on what bullying is and how to tackle it in the workplace. This could include examples of acceptable/unacceptable behaviours and, taking into consideration the complaints raised about Mr Raab, effective management skills for delivering constructive feedback.
The Hill Dickinson Health Employment Team are experienced in advising clients on successfully managing complex and sensitive bullying cases, so please do not hesitate to get in touch with your usual Hill Dickinson Health Employment contact if you need any advice or support in this area.
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
