Is it time for specific anti-bullying legislation?

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.

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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.