Bullying in the Workplace

The issue of bullying in the workplace has come to the fore recently, particularly in light of the report into Dominic Raab’s conduct at work and the finding that some of his behaviour amounted to bullying.

Following this report, there has been much discussion in the media about appropriate conduct at work, what style of management gets the best out of staff and how employers should react to allegations of bullying. What is one person’s ‘hard taskmaster’ is another person’s ‘bullying tyrant’.

Moreover, in 2021 there was a 44% increase in claims to the Employment Tribunal mentioning bullying. So, what should employer’s take from the recent furore?

In answering that question, we will consider aspects of bullying in the workplace, including:

• The effects of bullying in the workplace;
• Potential legal risks; and
• How to manage and respond to allegations of bullying in your organisation

 What is bullying?

Before delving into the finer detail of the issue, it’s useful to describe bullying more fully.

Although there is no legal definition of bullying, it 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

Bullying might:

• be a regular pattern of behaviour or a one-off incident
• happen face-to-face, on social media, in emails or calls
• happen at work or in other work-related situations
• not always be obvious or noticed by others

Examples of bullying at work could include:

• spreading malicious rumours about someone
• consistently putting someone down in meetings
• deliberately giving someone a heavier workload than everyone else
• excluding someone from team social events
• someone consistently undermining their manager’s authority (know as upwards bullying)
• putting humiliating, offensive or threatening comments or photos on social media

One of the key issues with bullying is its inherently subjective nature. Indeed, in a report into the complaints against Mr Raab, Adam Tolley says he heard a “good deal of evidence” about Mr Raab’s “use of physical gestures in communication”. In one case, he said: “This was put as extending his hand directly out towards another person’s face with a view to making them stop talking.”

“Another example of such an allegation was loud banging of the table to make a point.”

However, the report stated: “I was not convinced that the DPM used physical gestures in a threatening way, although those unused to this style of communication might well have found it disconcerting.”

What was found to be bullying, however, was referring to the Civil Service Code in a way that Mr Raab should have known could be seen as a “threat”, the report said. Essentially, threatening the job security of the employee by holding over them the fact that a serious complaint might be made about their conduct.

Essentianly, bullying can take many forms and has to be viewed in context, taking into account the nature of the working relationship and the impact of the behaviour on the ‘victim’.

The effects of bullying in the workplace

 Where bullying does take place, in can have a very serious and detrimental impact not only on the individual but also on the workplace as a whole.

Mental Effects

People who have been bullied in the workplace experience a wide range of problems. Impacts of bullying at work can include post traumatic stress disorder, in part because people self-identify so strongly with their work. Prolonged bullying may cause panic attacks, depression, stress breakdown, poor concentration, insecurity and compromised memory. Victims may become irritable, obsessive, hyper-vigilant or overly sensitive. They experience mood swings, indecision or a loss of humour, and may begin biting their nails, grinding their teeth or a relying on such substances as caffeine, nicotine, alcohol or sleeping aids.

Physical Effects

Bullied employees experience a wide range of physical effects, largely due to stress, such as chronic fatigue syndrome. Bullying also causes anxiety and a lowered resistance to such things as colds, coughs, flue and fever. Other reported symptoms include high blood pressure, migraine headaches, pains in the back and chest, hormone disturbances, physical numbness, irritable bowel syndrome, thyroid problems, skin irritations and ulcers. The impact of workplace bullying includes a greater risk of cardiac disease.

Researchers are also exploring whether there is an indirect link between bullying and such diseases as asthma, allergies, fibromyalgia, multiple sclerosis, diabetes and some forms of cancer.

Workplace Productivity Effects

Workplace bullying has effects on those who witness it as well as those who experience it, affecting the overall health of an organization. Victims spend much of their time trying to gain support and defend themselves from the bullying, time that would otherwise be spent working. Those who witness workplace bullying may look for another job that offers a better working environment. Other effects of bullying on the workplace include greater absenteeism and turnover, more accidents, lower quality customer service, higher costs for employee assistance programs and decreased motivation and morale.

Legal Risks

Unchecked bullying can result in potential legal risks, particularly:

• Constructive Dismissal
• Discrimination – if harassment is based, or perceived to be based, on a protected characteristic.

Constructive Dismissal

One of the key components in a claim of constructive dismissal (where the employee’s position is that they were forced to resign due to the treatment of them by the employer) is that there was a fundamental breach of the employment contract. The term that is often said to be breached is that of the implied term of trust and confidence.

A range of unpleasant behaviours may amount to a breach of the implied term.

In the case Protopapa, an employee who had been absent from work for a short time because of toothache was rebuked in a manner which was ‘humiliating, intimidating and degrading’. This was a breach of the implied term of trust and confidence.

Over the years case law has established that the fact that an employee receives very substantial remuneration does not buy their employer the right to threaten the employee with instant dismissal and use obscene language and insults.

Nor does the alleged nature of a particular industry justify lower standards of behaviour towards employees – for instance banking in the City.

One of the key features of such claims is the reaction of the employer, once bullying allegations have been brought to their attention. Taking such complaints seriously, considering disciplinary action where appropriate, thorough grievance procedures and the use of meditation are all measures which can be used by an employer to minimise the risk of such a claim.

Discrimination

Unlawful discrimination will often, but not always, amount to a breach of the implied term of trust and confidence (which can mean that the employer is on the receiving end of 2 claims; constructive dismissal and discrimination).

Harassment on the grounds of a protected characteristic can often be an example of the most insidious form of bullying – picking on a someone because of a protected characteristic. Again, however, context can be everything, as demonstrated by the case of Evans.

Here, the EAT upheld the employment tribunal’s conclusion that the comment ‘fat ginger pikey’ did not amount to harassment (despite the individual having links to the traveller community), taking into account the context in which the comment was made and also the relationship between the claimant and the person who made the comment. The facts found by the tribunal included that:

• the office culture was one of jibing and teasing among friends
• the claimant often said ‘c***’ and called another employee ‘fat paddy’ on a regular basis
• the claimant was an active participant in inappropriate comments and behaviour in the workplace and seemingly comfortable with the office culture and environment

In these circumstances, the EAT reasoned that:

• the comments were not unwanted, since the claimant was such an active participant of the culture of banter (for want of a better word for it)
• the comments did not have the purpose of violating the claimant’s dignity or creating an intimidating etc environment for him
• the comments did not have the effect of violating the claimant’s dignity or creating an intimidating etc environment for him, as he was not offended
• it would not have been reasonable for the claimant to have considered his dignity was violated or the environment was hostile etc given the particular circumstances and all the context and material facts relevant to the claim

Claimants should take note that if they actively participate in a culture of offensive ‘banter’, they may struggle to satisfy a tribunal that they were subjected to harassment, in accordance with the elements of the statutory test, in respect of any comments made to them within that environment.

Nonetheless, taking all we have discussed into account…

How should employers best manage/respond to bullying in the workplace?

Policies

Needless to say that robust policies – focussing on outlining standards of expected behaviour and conduct – are the first line of defence. Comprehensive policies governing diversity, equality and general civility in the workplace should be made available to all members of staff at the outset of their employment.

Training

Policies alone, however, are not wholly sufficient and should be supplemented by relevant training (especially for managers and supervisors) underpinning expected behaviours and reminding managers about processes for performance management of staff and those governing conduct.

All too often, bullying behaviour can be the result of a manager who does not have the appropriate tools for addressing underlying problems, such as performance, which can result in heavy handed and bullying behaviour.

Leading by Example

Research has also shown that where those at the top of an organisation can lead by example, promoting a culture of appropriate and professional behaviour, the rest of the organisation follows suit. Behaviours at work, which promote ‘psychological security’ (where employees feel comfortable to share problems or mistakes) enhance performance and morale.

Disciplining for bullying behaviour

If you do get to the stage where you have to discipline an employee for potential bullying behaviour, the usual process should be followed, with a few pertinent factors to be noted.

Investigation

This should be carried out as soon as is reasonably possible once the bullying allegations come to your attention and will help establish an understanding of the facts before deciding whether to discipline. You need to ensure that this is carried out with an open minded approach and avoid jumping to conclusions.

Once you have completed your investigation you should determine if the conduct is serious enough to warrant some form of disciplinary sanction (it would not normally be reasonable to proceed to a disciplinary hearing if, even at its highest, the misconduct alleged is clearly too trivial to warrant any form of disciplinary response).

An investigation can be carried out without giving the employee any warning or allowing them to be accompanied – this is often the moment in the process when you are most likely to get truthful and credible accounts of events, as the individuals in question have not had time to prepare (or concoct!) a more sanitised version of the truth.

In speaking to witnesses, some may wish to remain anonymous and this should be considered, especially if the allegations are against a person who is more senior than them.

Disciplinary Hearing

Prior to the hearing, the employee should have been given written notification of the details of allegations against them, which should include, where possible, dates and times of relevant events. The more opportunity the employee has had to defend themselves, the harder it will be to challenge any decision at the end of the process.

The employee should also be given all the evidence which will be considered at the hearing (anonymised where required). You should also be prepared for quite a tense meeting, as the accused individual may be become angry or upset.

Finally, in reaching a decision, you should work out how to articulate an appropriate justification for that decision. Obviously, in the most egregious cases of proven bullying, dismissal for gross misconduct can be appropriate.

Grievances during the disciplinary process

It is often the case that during a disciplinary process the employee who is under investigation will raise a grievance, especially if the reason for the disciplinary is related to attitude or behaviour. The general consensus is that the disciplinary process should be postponed and the grievance dealt with but that is not always necessary. If the issues in both are intrinsically linked then the issues can be looked at side by side/concurrently.