Is it time for specific anti-bullying legislation?

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There are a few avenues available to employees wishing to seek legal redress after being bullied in the workplace, but no specific anti-bullying legislation yet exists. Bina Patel explains why such a law would improve access to justice for all.

The Home Office, The Samaritans, Sellafield and the NHS have all recently been the subject of bullying-related news headlines, but no employer can afford to ignore the problem of workplace bullying.

The #MeToo movement has ushered in a new era whereby employees are increasingly unwilling to tolerate unacceptable behaviour.

Bullying can lead to lost productivity, absenteeism and high staff turnover, mental health issues for employees as well as reputational damage for employers.

Bullying can take many forms: from subtle to overt behaviour, from verbal to physical, from single incidents to serial occurrences. In some cases specific managers might be the problem, while in others it can be a wider organisational culture issue, where employees fear raising complaints or believe that concerns will be swept under the carpet.

So what does the law say about workplace bullying and is the existing legislation enough?

There is no legal definition of bullying and, unhelpfully, no single law against workplace bullying.

The options for making a legal claim about bullying include:

  1. Discrimination/Harassment: Where the bullying relates to a protected characteristic (sex, race, disability, religion or belief, sexual orientation, age, gender reassignment, pregnancy or maternity or marriage and civil partnership) it may amount to unlawful discrimination or harassment, or it may constitute sexual harassment and there may be grounds to bring a claim against the bully and the employer under the Equality Act 2010 at an employment tribunal. Any compensation is uncapped.
  2. Ordinary unfair constructive dismissal: Where there is a fundamental breach of an employment contract, the employee may claim ordinary unfair constructive dismissal in the employment tribunal. Commonly the bullying and/or the employer’s handling of it may breach the implied term of mutual trust and confidence between the employee and the employer, making the employee’s position untenable and leaving them with no choice but to resign. However, for this type of claim, employees will need at least two years’ continuous employment and compensation is capped at one year’s pay (up to a maximum currently of £86,444).
  3. Protection from harassment: In extreme cases an employee may consider bringing a claim under the Protection from Harassment Act 1997 in the civil courts. This requires evidence that the bullying was part of a course of conduct (i.e. at least two or more incidents), amounted to harassment under the Act, was oppressive, unacceptable and caused the employee alarm or distress. In practice such claims are rarely brought in respect of workplace bullying because of the high hurdle of showing that the harassment amounted to criminal liability.
  4. Personal injury: Finally, where the bullying leads to an employee developing a psychiatric injury, they might bring a claim against their employer for personal injury in the civil courts. To succeed, the employee needs to show: a breach of the duty of care by the employer; that the breach caused the employee psychiatric injury; and it was reasonably foreseeable. In practice, it is difficult to bring such claims in respect of workplace bullying.

Employers have a common law duty to take reasonable care for the safety of their employees and a statutory duty under the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. These duties can include protection from workplace bullying and an employer’s breach of such duties is sometimes relied on by employees in claims for constructive dismissal or personal injury.

The list of potential claims may seem long but for many employees, their particular circumstances may mean there is no claim is available to them. What if they have less than two years’ service, the bullying was not related to a protected characteristic, they have not suffered a psychiatric injury, the capped compensation is insufficient to cover their potential losses or they simply do not want to resign to bring a claim? Many employees fall through the gaps in the current legislative framework and are left without legal protection against bullying.

Access to justice

Isn’t it time we modernised this complicated legal landscape by having a specific law against workplace bullying to allow simpler legal recourse and access to justice for all employees who suffer bullying and to enable a more positive era of employer responsibility and accountability?

The introduction of a single law against bullying would make the right to work in a bully-free environment inalienable. This could follow a similar approach to existing anti-harassment provisions under the Equality Act 2010 and might include:

  • The ability to bring a free-standing claim for bullying at an employment tribunal
  • No qualifying service requirement to enable individuals to be protected from day one
  • Protection to a broader category of individuals in the workplace (e.g. employees, workers, contract workers, partners and others)
  • A legal definition of bullying to bring greater certainty and clarity
  • Uncapped compensation, including injury to feelings awards, and
  • The ability for claims to be brought during employment to avoid employees being forced to resign to bring a claim.

It goes without saying that in this day and age employers should have effective anti-bullying policies in place and provide training, internal campaigns, helplines and counselling in support of zero-tolerance of workplace bullying.

However, despite these measures, surveys and news headlines show us that bullying in the workplace persists. Perhaps it would only be the introduction of specific anti-bullying legislation that would help to bring real culture change.

Bina Patel

About Bina Patel

Bina Patel is a senior associate in the employment team at law firm Kingsley Napley LLP.

5 Responses to Is it time for specific anti-bullying legislation?

  1. Avatar
    Alan Sharland 16 Mar 2020 at 10:38 am #

    It surprises me that in such situations the move is always towards more and more legislation rather than a recognition that most bullying allegations arise from a broken/difficult and unsupported working relationship that has not broken any law (unlike with issues such as harassment). So few approaches incorporate support that can restore broken relationships and in turn lead to greater mutual understanding of colleagues and greater resilience within teams. Pursuing any investigatory, adversarial process (again, where it is not harassment which has to be pursued legally) is arduous, stressful, costly to the organisation and all involved and ultimately inconclusive. Most policies on such issues make no mention whatsoever of relatonship support processes such as mediation and conflict coaching which can help more effective, professional, amicable working relationships to be developed. Staff may have ‘personal’ issues with other colleagues but that does not mean it is impossible to maintain a professional working relationship. Continuously expecting more and more legislation means the options always available to improve working relationships are ignored despite their clear effectiveness. Your last comment ‘Perhaps it would only be the introduction of specific anti-bullying legislation that would help to bring real culture change.’….no it would simply mean more and more involvement of lawyers in issues that do not lead to any cultural change and do not further that aim…for any comparison look at the Fair Work Commission judicial arm for bullying allegations in Australia. Less than 10% reach any conclusion and where they do, the actions advised are no different to what most organisations would do anyway……but now the decisions are taken by lawyers and judges rather than in-house teams and are no more effective.

    • Avatar
      Marco 25 Aug 2020 at 8:41 pm #

      Alan, Alan, Alan, what are you talking about. You seem to be clueless.
      While your point about more involvement of lawyers is correct please don’t be too obsessed with legalities of this issue.
      Cinsequences of bullying could be very dramatic, e.g. suicide; yes suicide Alan, so legislative change in order to make bully think twice is no doubt desired.

  2. Avatar
    Jonathan Wilson 2 Nov 2020 at 8:33 pm #

    Having discussed this issue with Alan many times in the past I have the distinct feeling that he has never experienced the type of workplace bullying that causes psychological harm and is an intended assault against the target by the perpetrator. Many bullies utilise gaslighting and mobbing covertly and in deniable circumstances to destroy the confidence of the target and to spread malicious and untrue rumours about the target to others to harm or destroy their credibility amongst colleagues. So often bullying is not a break down in working relationships between two parties, rather it is a pernicious and violent psychological assault on a target that can render the target seriously ill and absent from work, to leave their job, in some circumstances never to return to work and even to suicide. The notion of broken relationships suits Alans agenda of utilising mediation which most experts in workplace bullying and trauma would say is in most circumstances totally inappropriate to those suffering trauma.

  3. Avatar
    Jonathan Wilson 2 Nov 2020 at 8:38 pm #

    Unfortunately there is little understanding on this issue amongst government Ministers as this copy of a reply I recently received from my local MP George Eustace demonstrates:

    Dear Mr Wilson,

    Thank you for your email regarding bullying in the workplace.

    Bullying and harassment is entirely unacceptable in any workplace. I am pleased that there are safeguards in place to protect employees in the workplace.

    The best way to address bad behaviour in the workplace is through cultural change, although it is also important to have a safety net of legislation to protect employees from the worst kind of abuses. Employers can, for example, establish good practices through a clear anti-harassment policy and ensure all staff receive training in this area.

    The Government has identified a need to take further action where employers are using non-disclosure agreements to intimidate victims of harassment into silence. Following a consultation on the misuse of confidentiality clauses between workers and their employers in 2019, a package of measures were announced, including commitment to legislate so that no provision in a workplace non-disclosure agreement can prevent disclosures to the police, regulated health and care professionals and legal professionals.

    In addition, the Government will legislate to improve independent legal advice available to an individual and legislate so that the limitations of a confidentiality clause are clear to those signing them.

    I take this issue incredibly seriously and welcome that additional protections will be put in place.

    Thank you again for taking the time to contact me.

    Kind Regards,

    Rt Hon George Eustice MP

  4. Avatar
    Nora Josh 9 Nov 2020 at 9:40 am #

    Anti bullying legislation is so important for the mental and social wellbeing of our upcoming generation. It is time to raise awareness about this issue on different levels.

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