Legal Q&A: Bullying in the workplace

There has been substantial recent press coverage regarding the issue of workplace bullying – much of it sparked by a Unison survey suggesting that bullying at work has doubled in the past 10 years, with one in three staff claiming they’ve been bullied in the past six months.


While this statistic may itself be surprising, a general increase in cases of bullying is probably not.


Q Why the increase?


A Businesses continue to operate in an environment of unprecedented financial turmoil. This places employees with responsibility for the financial bottom line under significant pressure. These are often the same individuals who are responsible for line managing teams, departments or divisions within their employer’s business. Moreover, the combination of widespread redundancy exercises with increasing rates of unemployment has led to an environment in which employees are seen as a less valuable commodity, resulting in less focus on the ‘softer’ side of employee relations.


In addition, as a consequence of the same redundancy exercises, there are an increased number of aggrieved ex-employees who are now more likely to complain about behaviour that previously they would either have reluctantly accepted, or simply not categorised as bullying at all.


Q What is workplace bullying?


A In its Guide on Bullying and Harassment, Acas describes bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient”.


Such behaviour need not necessarily be directed by a senior employee towards a more junior one. Bullying also takes place between peers, as demonstrated by the practice of “mobbing”, where a group of employees target a single co-worker and, through the use of e-mails, comments and general conduct towards that -worker, make their working environment a highly unpleasant one.


Q What are the legal risks?


A Workplace bullying can have a number of undesirable effects, including poor morale, poor performance and loss of productivity due to increased levels of absence. In a legal context, we are seeing an increased number of tribunal claims in which allegations of bullying form a substantial part.


Generally, such allegations feature in one of two ways. Often it is alleged that bullying behaviour is based on, or makes reference to, someone’s race, sex, age, sexual orientation, religion and/or a disability (the ‘prohibited characteristics’). Such conduct will amount to either direct unlawful discrimination, unlawful harassment or both. An employee is entitled to bring such a claim even if they remain employed. If successful, they would be entitled to receive an award for injury to feelings of between £500 and £30,000, depending upon the severity of the treatment to which they have been subjected.


Where the behaviour complained of results in an employee resigning, and provided they have at least one year’s service, they will be entitled to claim constructive unfair dismissal. If successful, an employee will be entitled to recover the losses that they have suffered as a consequence of the termination of their employment up to the statutory cap of £66,200. If it is alleged that the bullying conduct which led to the constructive dismissal was based on one of the protected characteristics (or because they have blown the whistle on the wrongdoing of their employer or a co-worker), there is no requirement for the employee to have one year’s service to bring their claim. In addition, the statutory cap on damages falls away, and the employee would also be entitled to an injury to feelings award as referred to above.


Either way, the message is clear: an employer that permits bullying within the workplace is exposing themselves to significant financial risk.


Q What can an employer do to reduce the risk?


A The Acas guide makes a number of suggestions, including operating a specific policy on bullying and harassment, providing training for managers (this should cover both avoiding bullying behaviour when managing subordinates and how to monitor and identify bullying between members of a manager’s team), and maintaining comprehensive procedures to deal promptly with any complaints received from employees. These suggestions are clearly sound and are already in situ in many workplaces.


However, perhaps the single most important factor in minimising incidents of bullying in the workplace is that employers are seen to be proactively promoting a non-bullying environment, responding swiftly and appropriately to complaints that they receive. It is practical evidence of a zero-tolerance approach to bullying that is most likely to deter the would-be bully, and to provide their potential victim with the confidence to report instances at an early stage before they have time to become more widespread.


Nick Thomas, senior associate at global law firm Jones Day