The cost of workplace bullying: why it pays to look after your workforce

Allegations of workplace bullying have been at the forefront of British politics and news outlets in recent months, from allegations against Home Secretary Priti Patel, to accusations raised against Carrie Symonds and Meghan Markle.

The workplace is a hotspot for bullying allegations and the consequences can be expensive. After news broke last year of a Cabinet Office inquiry into allegations of bullying by Priti Patel, brought by former chief civil servant Sir Philip Rutnam, it has been reported recently that Rutnam agreed to settle his claims for £340,000 plus his legal costs.

The prevalence of alleged bullying is striking, as was apparent from a CIPD report dated January 2020 revealing that 15% of workers experienced bullying in the last three years. However, despite the widespread awareness of bullying, it remains a serious and concerning problem in many workplaces. In this alert we discuss the law around workplace bullying and some preventative steps that employers can take.

What is bullying?

‘Bullying’ is not defined explicitly in employment law, instead falling under the umbrella of “harassment” – which is defined in the Equality Act 2010 as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.

ACAS provides some further clarity, stating that bullying may be characterised as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the resilience’.

It’s important to note that bullying and harassment are terms that are often used interchangeably, and many definitions include bullying as a form of harassment.

Examples of workplace bullying

Examples of workplace bullying can include:

• being sworn at or humiliated in private or public;
• being undermined and/or constantly micro-managed;
• being picked on or put down;
• being set up to fail;
• being treated differently to other employees;
• threats to job security; or
• inappropriate and derogatory comments.

With many workplaces now operating virtually, employers should be aware of cyberbullying. Cyberbullying in the context of work could include:

• leaving someone out of a group chat but including all other team members;
• sending threatening or abusive emails to a particular individual;
• circulating inappropriate messages;
• harassing colleagues on workplace instant chats; or
• constantly interrupting the same employee on video calls.

What legal claims may be brought as a result of bullying?

Employers will generally be liable for acts of harassment carried out by their employees during the ‘course of employment’. The following claims may arise if bullying persists in a workplace.

Constructive dismissal

Employers have an obligation to maintain an appropriate and suitable working environment for employees. If an employee feels that their work environment is intolerable because of bullying and harassment in the workplace, they may resign and claim constructive dismissal on the basis that their employer breached the implied term of trust and confidence. The maximum amount which can be awarded as compensation is presently the statutory cap of £88,519, or a year’s pay – whichever is lower.

Discrimination

If the bullying or harassment is because of a protected characteristic, which includes age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation – it may give rise to a discrimination claim. For example, if a pregnant woman was bullied and inappropriate comments were regularly made about her appearance, she may have a claim for unlawful harassment and/or pregnancy discrimination. Discrimination claims are not subject to a statutory cap and therefore the potential compensation that can be awarded for such claims is unlimited.

Protection from Harassment Act 1997 (PHA 1997)

Under the PHA 1997, an individual can bring a claim if they have been subjected to a course of conduct (more than one incident), which amounts to harassment of another and which the harasser knows or ought to know amounts to harassment. A claim under the PHA 1997 does not have to be on grounds of a protected characteristic nor is compensation capped.

The legal test of harassment

Following the inquiry into Priti Patel’s behaviour, she issued an apology saying, “I am sorry that my behaviour has upset people. I have never intentionally set out to upset anyone”. Would this argument that she “never intentionally set out to upset anyone” stand up in an employment tribunal?

The legal test of harassment is part subjective and part objective. Firstly, a subjective assessment of the impact or effect of the act or behaviour on the recipient, followed by an objective assessment of whether that impact or effect is reasonable in all the circumstances.  For the first part of the test, it does not matter if it was not an individual’s purpose or intention to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them. For the purposes of defending a harassment claim it is not an effective defence for the alleged perpetrator to say “I did not intend to upset the employee” as the Tribunal will look at whether the perpetrator’s behaviour had this effect. 

The second element of the test is the objective tier, and considers whether it was reasonable for the conduct to have the effect. An alleged perpetrator may try to argue that the claimant was being ‘hypersensitive’, however provided the claimant’s reaction was not completely unreasonable, the alleged perpetrator will be liable.

A tribunal must take into account the following factors (as set out in the Equality Act 2010):

• the perception of the claimant;
• the other circumstances of the case; and
• whether it is reasonable for the conduct to have that effect.

How can employers prevent bullying in their workplace?

It is important for employers to take steps to minimise the risk of bullying occurring within their organisation, not only to prevent legal claims but also to protect their workforce and business. Bullying can lead to performance issues, lost productivity, low workforce morale, increased staff absence, high staff turnover, increased recruitment costs and reputational damage if matters become public knowledge.

Employers should have clear anti-bullying and harassment policies in place, ensuring that policies are communicated to all staff. The policy should set out examples of unacceptable behaviour, and the consequences that may result from any such behaviour. Employers should also set out the procedure for employees to follow if they wish to raise a concern or complaint, either formally or informally, and how any reports of possible bullying or harassment will be investigated.

Workplace bullying policies need to be regularly reviewed, to ensure that they are effective, and employers need to take active steps to ensure the policy is well known and followed. All staff, particularly managers, need to be trained on the impact of bullying in the workplace and how to spot it.

Allegations of bullying should always be taken seriously and investigated immediately. Following an investigation, disciplinary action should be taken if appropriate. Taking the above actions will help maintain a workplace culture that is inclusive, and in turn see the retention of talented employees.  It will also play an important part in a defence by an employer that it took “all reasonable steps” to prevent harassment if such an allegation is made.