There is currently no specific legislation in the UK that defines bullying, or provides a comprehensive framework for addressing it. This issue has come into particular focus following the resignation of Dominic Raab, who criticised the inquiry into his behaviours as setting the threshold for bullying “so low” he said it created a dangerous precedent.
Raab’s case highlights that what exactly amounts to bullying is a grey area. Because of this, it can be challenging for employers to determine what behaviour constitutes bullying and how to respond appropriately when a complaint of bullying is made.
Below are some of the difficulties that employers may face when investigating complaints of bullying and some practical tips on how to manage them.
1. Subjectivity of complaints
Complaints of bullying are often subjective and can be difficult to verify. What one person considers to be bullying behaviour may not be considered bullying by another.
To address this, employers should have a clear policy which defines bullying. Generally, bullying is considered to be offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient. This is the definition provided by the Advisory, Conciliation and Arbitration Service (Acas), which provides free, impartial advice on workplace rights and best practices.
Crucially, the definition should be applied to all complaints to ensure consistency and equal treatment of employees. It will then be for an investigator to consider whether a complaint meets the definition under the policy. It can also be helpful for employers to provide some examples in their policy of what might amount to bullying behaviour.
2. Lack of clear evidence
Bullying behaviour can often take place behind closed doors making it difficult to prove. Arguably, the increase in hybrid working has made this even more challenging with bullying behaviour between employees working from home taking place without witnesses. However, having a lack of witness evidence is not uncommon in employment cases. Many instances of bullying, harassment and discrimination for example will centre on one employee’s word against another.
To address this, we often advise clients to appoint trained investigators, like senior HR representatives, independent consultants or lawyers who are accustomed to dealing with complaints with little witness evidence, and who are experienced in applying general principles of employment law to assessing whether or not a complaint amounts to bullying.
3. Balancing the rights of the complainant and the respondent
It goes without saying that an employer must take steps to safeguard a complainant that has alleged bullying. Consideration should be given to how to maintain confidentiality in respect of the complaint and how the employer can avoid the complainant being treated negatively as a result of raising the complaint.
However, careful thought should also be given to safeguarding the rights of the respondent to the allegations. No action should be taken against the respondent until a thorough investigation process has concluded. The exception to this is when it might be appropriate for the respondent to be suspended during the investigation. Whether or not to suspend requires consideration, taking into account Acas guidance on suspension. The employer should provide the respondent with a clear rationale for suspension and should only suspend for as long as necessary.
Maintaining confidentiality through the investigation process is likely to be important both from the complainant’s and the respondent’s perspective.
There is an important but difficult balance to strike where the complainant wants their identity protected but the respondent needs to know the full case against them in order to respond in detail to the allegations.
Employers should ensure both parties are regularly updated on the process.
4. Uncertainty around the law
Given that bullying is not defined under the law and employees cannot bring standalone claims for bullying, alleged bullying behaviour must meet the definition of harassment or discrimination if employees want to seek legal redress through the employment tribunals.
As a result, and in the wake of the investigation into Raab, there have been calls for specific legislation to address the uncertainty. There is no doubt that discreet legislation would help to reduce ambiguity and subjectivity when investigating complaints. Arguably, legislation could also encourage employers to take a more proactive approach to preventing bullying in the workplace, knowing that they could face employment tribunal claims for failure to do so.
However, the counter argument is that legislation could result in employees becoming overly cautious about their behaviour in the workplace, removing for example the ability to give firm and constructive feedback for fear of being accused of bullying (sentiments raised by Raab in his letter of resignation).
In the meantime, employers should ensure that they have clear policies and procedures in place for handling complaints of bullying and that employees feel confident they can raise a complaint without fear of retaliation. Employers should also strive to create an inclusive culture of respect in the workplace, which should help to eradicate bullying in the first instance.
This article was first published by People Management on 24th May 2023.