Employers have a duty to provide a safe working environment to their employees, to ensure they are not discriminated against, and do not suffer harassment or victimisation, due to any of the protected characteristics under the Equality Act 2010. However, when it comes to bullying at work, employers will have become aware that the 'bar' when behaviours cross the threshold to be classed as bullying seems to have lowered, which has increased the risk of litigation for employers.
Dominic Raab was accused of acting in an "intimidating" fashion, with "unreasonably and persistently aggressive conduct", in work meetings while he was Foreign Secretary. The alleged behaviour was seen as an abuse or misuse of power, in a way that undermined or humiliated his staff. The subsequent report concluded that Mr Raab had "acted in a manner which was intimidating" by going further than appropriate in "delivering critical feedback", and insulting officials by making "unconstructive critical comments" about their work. The report went on to say that Mr Raab "must have been aware of this effect", or "reasonably" should have been. Mr Raab subsequently resigned but maintained that the whole investigation against him had been flawed and that the finding of bullying in this case would set a "dangerous precedent", which would stop ministers from driving change. He insisted that ministers "must be able to give direct critical feedback, on briefings and submissions, to senior officials in order to set the standards and drive the reform the public expect from us".
The current law
Discrimination and Harassment are defined under the Equality Act, but bullying itself is not against the law, and currently has no legal definition. In certain cases, employees will be able to bring an Employment Tribunal claim for discrimination, or harassment, and in some cases constructive unfair dismissal. An employer has a duty to provide a safe working environment, but there is currently no legislation to support how this would be enforced, or would address any harm caused, which makes it vital for employers to have policies and procedures in place to deal with any alleged misconduct in the workplace. For an employee who does not have a protected characteristic, there is currently no direct legal protection, other than for constructive unfair dismissal, in response to a serious breach of their employment contract. Employers are advised to have robust policies in place to deal with unacceptable behaviour and to provide adequate training to all employees on what is and is not acceptable behaviour in the workplace. An employer would also want to thoroughly investigate any complaints it receives by employees relating to allegations of unwanted conduct.
The future?
A recent Private Member's Bill, The Bullying and Respect at Work Bill, goes even further and puts employers under the spotlight. Whilst it is unlikely to get past a second reading, it is another example of the current changing landscape within employment law. It serves as an important reminder for employers to have thorough and well drafted policies and procedures, to deal with toxic working cultures, and to show that they have mechanisms in place for when things go wrong. The Bill proposes to introduce a statutory definition of bullying, to enable claims related to workplace bullying to be more easily brought in a Tribunal and to make dismissals related to bullying a day one right, giving it the same protection as current whistleblowing and discrimination legislation.
The proposed approach would also mean that once the threshold tests have been met, the burden of proof would switch to the employer to demonstrate that bullying had not occurred. Formal mechanisms for reporting and investigating bullying at work would be introduced, and the Equality and Human Rights Commission would be given powers to investigate claims of bullying cultures, which would allow it to take enforcement action if appropriate. The aim of the Bill is to deliver legal and cultural change to create more positive working environments. It would also bring in a new respect-at-work code, which will set minimum standards for respectful work environments.
Take home points
Although this Bill is not expected to make much progress in Parliament and is unlikely to become law, it serves as a reminder of the changing landscape employers find themselves in and draws attention to workplace cultures and levels of acceptable behaviour and conduct in an ever-changing world.
For now, employers will still want to bear in mind any negative effects on its employees, and its reputation, and investigate all complaints thoroughly. Employers might wish to provide managers with relevant training on all policies relating to behaviour at work. Although some may see the Bill as a welcome sign of things to come, others may be concerned that it is another step closer to setting a "dangerous precedent", where employers are unable to give any kind of critical feedback to employees for fear of being seen as a bully. There is now a much finer balance between providing a safe working environment and allowing employers to adequately manage their workforce. Employers will need to seek early advice, on issues surrounding staff conduct, to ensure they are complying with all of their duties, prevent problems in managing and maintaining a cohesive working environment, and to manage the risks of Tribunal claims.
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