The lack of a distinct statutory definition of workplace bullying, and of bespoke protections addressing it must be rectified, argues Thomas Beale.
In recent months, we have witnessed significant reforms to existing employment legislation, leading to enhanced protections of employee rights.
Among the most striking developments is the introduction of the Worker Protection Act 2023, a long-anticipated amendment to the Equality Act 2010. This legislation goes far to proactively address the issue of sexual harassment, obliging employers to take “reasonable steps” to safeguard their employees from such misconduct. While this reform is highly commendable, an equally critical issue has remained unaddressed: the pervasive issue of workplace bullying.
Currently, there is no distinct statutory definition of workplace bullying, which leaves many employees without sufficient protections or viable avenues to seek legal recourse.
Sexual harassment and bullying – legal distinctions
Sexual harassment is explicitly prohibited under the Equality Act 2010. The Act defines this form of harassment as “unwanted conduct of a sexual nature, which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.”
Bullying and sexual harassment
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Victims of sexual harassment have the right to seek compensation from their employer through the employment tribunal, which may impose a “compensation uplift” of up to 25% should it find that the employer has failed in their duty to take “reasonable steps” to prevent the misconduct.
However, for bullying to fall under the scope of the Equality Act, the conduct in question must be linked to a protected characteristic, such as age, disability or race, considerably narrowing the scope of the Act, and rendering it ineffective in many instances of generalised workplace bullying.
While discrimination and harassment can be present in certain cases of workplace bullying, this is not always the case.
Bullying encompasses a broad range of conduct, which can show up in both overt and subtle forms. Common examples of bullying behaviour may include:
- Intimidating or threatening language
- Ridicule
- Undue punishment or criticism
- Overworking
- Denial of training or career progression opportunities; and
- Undermining.
Unfortunately, individuals who have experienced these forms of bullying, unrelated to a protected characteristic, often find that seeking legal recourse can be extremely challenging. Excluded from the protections of the Equality Act 2010, these victims are left to explore other legal avenues, which frequently fail to adequately address their concerns.
Current legal avenues for victims of workplace bullying
The inappropriate normalisation of bullying behaviour in the workplace has worked to minimise the severity of this issue. An important aspect that is often overlooked is the long-term psychological impact that many victims of such conduct experience. For some, seeking justice through legal recourse is a vital step in their recovery journey. One option that such victims may consider is a personal injury claim in the civil courts.
Victims seeking redress in the civil courts may consider the Protection from Harassment Act 1997, which stipulates that employers can be held ‘vicariously liable’ for the misconduct of their employees. However, to succeed under the Act, victims must be mindful of several stipulations. In order for conduct to amount to harassment under the Act, it must be deemed “oppressive and unacceptable” and “calculated in an objective sense to cause alarm or distress”.
Unfortunately, this vague definition has necessitated the involvement of the court, which has narrowed the scope even further. According to case law, conduct will need to meet the threshold for criminal liability to fall under the scope of the Act. This notoriously high threshold presents significant challenges for those pursuing this route and often excludes cases of generalised workplace bullying.
Claims in negligence
Alternatively, if an employer was aware of bullying taking place, and failed to implement appropriate measures to protect the victim from further harm, a claim in negligence may be considered. Unfortunately, this route also presents challenges. Establishing what an employer knew of and when they became aware of the situation often proves difficult.
Furthermore, obtaining witness statements from colleagues is a challenging task, as employees are typically hesitant to speak out against their employer. Without corroborative evidence to support their claim, many victims will find it difficult to succeed with a claim in negligence.
Despite advancements in legislation addressing sexual harassment, significant barriers remain for those seeking justice for more generalised bullying in the workplace. Evidently, there are numerous difficulties in pursuing workplace bullying claims under the existing legal avenues. The absence of a distinct legal definition creates ambiguity regarding what constitutes such behaviour, leading to inconsistency and uncertainty in the legal avenues available to victims.
To ensure comprehensive protection for individuals affected by workplace incivility, it is imperative that we avoid the continued narrowing of anti-harassment laws, and push for the establishment and implementation of bespoke protections addressing workplace bullying.
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