Bullying in the workplace and allegations of bullying harassment at work have seldom been out of the headlines.
Politicians such as ex-speaker John Bercow or Home Secretary Priti Patel have been accused of such behaviour. Even the royal household it would seem is no stranger to similar allegations, which came to light just days ahead of the provocative Oprah Winfrey interview with Prince Harry and Meghan Markle, with the Duchess of Sussex’s communications secretary raising concerns in October 2018 that two personal assistants were “bullied out of the household” without an investigation being carried out.
Some media coverage suggested that those royal bullying allegations (or at least the timing of those claims being made public) were motivated by a desire to damage reputations or part of a pre-emptive tit-for-tat “smear campaign”.
Whatever your opinion on that may be, it doesn’t take away from the fact that should a complaint of bullying and harassment in the workplace be made, it requires investigation.
What is the difference between bullying and harassment?
Bullying is a broad term used to describe behaviour from a person or group that is unwanted or that creates a hostile environment for an individual. It might include acts like excluding someone from meetings or group activities, shouting or swearing at someone, spreading rumours about someone or a result of inappropriate “banter”. Bullying can happen in any format, whether in person, in an email or on social media.
Bullying becomes harassment (under s.26 of the Equality Act 2010) when this sort of behaviour relates to a protected characteristic, namely age, disability, race, gender reassignment, pregnancy and maternity, religion or belief, sex or sexual orientation.
Establish a bullying and harassment policy and take reasonable steps
We would encourage all employers to have a bullying and harassment policy in place in order to demonstrate clearly what standards and behaviours are expected but also what employees need to do if there is a problem. Indeed, following the publication of the allegations against Meghan Markle, even the royal household confirmed that it operates a zero-tolerance of bullying or harassment in the workplace and that, like many workplaces, it has had a dignity at work policy in place for several years.
Further, if facing a claim of harassment, employers may seek to rely on the “reasonable steps” defence and argue that the employer took all reasonable steps to prevent that employee from harassing another. Having a policy in place is key to this defence but employers will need to show more than just having a policy in place and must be able to demonstrate zero-tolerance in action. This could include examples of training with their employees and managers (which is up to date and effective), taking disciplinary action for such behaviour, or perhaps providing access to confidential helplines.
Handling complaints of bullying and harassment
All employers have a duty of care to protect their employees in the workplace. Failure by those employers to take complaints of this nature seriously, or to take action, could have very serious implications. As such, employers should ensure that they have robust procedures in place to handle complaints of bullying and harassment and that they instigate such procedures promptly. This may be dealt with in accordance with a grievance procedure, but as an outline should involve:
- acting promptly, sensitively and in a confidential manner
- carrying out a thorough investigation, taking into account any relevant witnesses
- taking proper notes of those investigations and reporting on the findings
- meeting with the employee who raised the complaint and working through the report with them
- discussing possible outcomes and ways to move forward
- taking disciplinary action against the culprit if it is established that they did indeed bully or harass the complainant
Victims of bullying and harassment may need other support which outlasts the conclusion of a grievance process. For the victim, such behaviour can have a severely detrimental impact on mental health, as was claimed by Megan Markle in the Oprah interview.
As such, employers may consider offering counselling or mentoring to support the employee to continue at work. If the employee has been or remains on sick leave due to stress (for example), then support should be offered to help them to return to work. Employers may want to seek advice from occupational health as to how they can best do this. Some solutions may include a phased return to work, adjustments to workload or even possible redeployment.
Employers should in any event communicate with the employee throughout the grievance process and check with the employee afterwards to make sure that any actions and outcomes are helping and that the bullying has ceased.
Legal claims for workplace bullying and harassment
There is a clear legal framework under the Equality Act 2010 to bring a claim for harassment in the employment tribunal. However, bullying is not a head of claim that can be brought on its own and, as such, employees may try to bring bullying claims from other angles.
For example, former civil servant and head of the Home Office Sir Philip Rutnam quit in response to an alleged “vicious and orchestrated” campaign of bullying against him and other Home Office staff who had come to him with allegations that Home Secretary, Priti Patel, was routinely "shouting and swearing" and "belittling people".
His resignation led the Cabinet Office to launch an inquiry into whether Ms Patel had broken the code governing ministers' behaviour. The investigation by Sir Alex Allan found that she had (albeit perhaps unintentionally) broken the ministerial code, but the Prime Minister rejected the findings and Ms Patel remains in post. Sir Alex resigned in response.
In any case, Sir Philip Rutnam’s claim for constructive dismissal was brought on the basis that the alleged bullying by Ms Patel amounted to a fundamental breach of contract, which in turn allowed him to resign and claim constructive unfair dismissal. The government recently settled the claim for £340,000 plus Sir Phillip’s legal costs, so we won’t see an outcome. However, it is a stark reminder that workplace bullying, left unchecked, can have serious financial and reputational repercussions for employers.
Outside of the employment tribunal, employers should also be aware that civil claims can potentially be brought against them under the Protection from Harassment Act 1997 or for breach of their employer’s duty of care.