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Bullying at work: what steps can you take?

We take a look behind the headlines. What constitutes bullying in the workplace and how you can you call it out?

Workplace bullying: a man shouting into a desk telephone

Bullying has been in the headlines recently, with Priti Patel having been found to have breached the ministerial code by bullying staff at the Home Office.  Does her ‘defence’ – that she didn’t intend it – stand up? And how should bullying be dealt with?

What is bullying?

There’s no legal definition. It covers offensive, intimidating or insulting behaviour, involving the misuse of power that can make the individual feel vulnerable, upset, humiliated, undermined or threatened. Power can include being in a position of authority or coercing through fear or intimidation.

How might this be seen in the workplace? It could be a manager shouting or swearing at a member of staff, micromanaging, making inappropriate and derogatory remarks about performance or setting unattainable and unreasonable targets that set them up to fail.

Bullying isn’t legitimate, reasonable and constructive criticism of a worker’s performance or behaviour or reasonable instructions given in the course of employment.  Management can have high standards, which they can maintain without bullying.

What is harassment?

People often talk of harassment and bullying as one and the same. But harassment does have a legal definition. This says that a person harasses another if they engage in unwanted conduct related to a protected characteristic that has the purpose or effect of violating that other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Protected characteristics include race, sex, age, disability, sexual orientation. The conduct can be physical, verbal or non-verbal.

This legal definition only covers harassment if it relates to a protected characteristic, for example, belittling a person’s disability. But in practice at work the term is used to cover a wider range of categories, such as unwelcome suggestive behaviour or ‘horseplay’, offensive emails or social media comment.

What is an employer’s duty here?

An employer should provide a working environment for all staff that is free of harassment and bullying. They should ensure all staff are treated, and treat others, with dignity and respect. They are also under a duty to provide a safe workplace and this includes one without bullying.

Appropriate management rather than bullying

How should managers behave? If an employee’s work isn’t up to standard, they should use performance management processes. This means explaining about the issues of concern, offering training and support and giving clear and reasonable targets for improvement. If it’s a disciplinary matter, then deal accordingly and use a fair process.  It’s not being aggressive, shouting, humiliating a person in front of colleagues or undermining them.

Managers should also be aware that just because they didn’t intend to bully, or didn’t appreciate the consequences of their actions, that’s not a defence. It’s how the victim felt that is important, particularly with harassment. They may still have bullied.

What can an employee do if they’re a victim of bullying?

It’s often difficult to know what to do if you’re on the receiving end of bullying behaviour. Here are some options:

  • Do nothing and hope it will resolve itself. Often, however, this is taken by person bullying to be a green light to continue. They don’t stop. It can all start to have an adverse effect on health and wellbeing.
  • Raise the matter informally with the person concerned direct and explain how uncomfortable their actions make you feel, or raise through other work channels, such as HR. If they genuinely didn’t know the effect of their actions, they may then modify their behaviour. Or other solutions may be suggested, such as workplace mediation or moving to another department (and there is then the question of who should reasonably move, the bully or the victim).
  • Raise a grievance. This is a formal route and not without its dangers. Yes, the employee may get a finding of bullying and yes, the bully may be given training or workplace mediation offered but often, the result is less clear cut. If it’s one person’s word against another, it can be harder for a finding of bullying to be made. And very often we see that the result of raising a grievance is that the employee leaves, as the working relationship is so damaged. So think hard and take advice before taking this step, as legal help may enable you to leave on a better basis, if it comes to that.
  • If the result of the grievance is unsatisfactory and if the employee has over two years’ service, they can resign and claim constructive dismissal. As before, the suggestion is that you take legal advice before doing so, in order that you do what you can to protect your position. The basis for a claim would be that the bullying behaviour has breached the legal duty of trust and confidence. But again, this is a tricky route. Constructive dismissal cases are often hard to win and the employee has had to become unemployed, particularly hard in the current climate. This option is only available to those with two years service.
  • If the behaviour is harassment and related to a protected characteristic, such as sex, age, race or sexual orientation, then a discrimination claim is a possibility. There’s no need to resign to make such a claim. An employee can make such a claim even if they haven’t been working there two years.
  • As an employee, it’s a good idea to keep a record of bullying actions and events. If the matter does go to a tribunal, such contemporaneous information can be vital.

What steps should an employer take?

If there’s an allegation of bullying, take it seriously, investigate, support and deal with the problem. Don’t just sweep it under the carpet and hope it will go away.  Recognise the bullying may take place outside the workplace, such as on business trips or work social functions. Also, with many working from home, employers need to have an eye out for remote bullying, such as email or Zoom meetings. If needed, take disciplinary action against the perpetrator. Ensure you have policies in place that address bullying and harassment and that staff know where to find them.

And no, not intending to bully or not appreciating the effects of your actions isn’t a defence, in or outside government.

If you have any queries regarding this article, or any other employment issues, please contact Sue Fairbairn or speak to our employment team.

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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