Anti-bullying week will take place in the UK from Monday 11th – Friday 15th November this year (2024).
Why is this important?
Conflict in the workplace can have a negative effect on many aspects of working relationships, physical health and mental health. It can result in decreased levels of performance and increased levels of absence. It can result in people leaving their employment with the knock-on costs of recruitment and training. Of course, the person that leaves could be a very good employee that you otherwise would not want to leave your business. There are therefore many reasons why conflict – and at its most unacceptable form, bullying – must be addressed by employers.
Businesses therefore have a number of fundamental drivers for addressing bullying at work. Morally all organisations should want to create a culture that fosters respect for and between its employees. Legally, an employer should seek to minimise the potential for unnecessary and avoidable conflict and bullying to minimise the risk of litigation. And economically, it simply makes sense for employers to have a positive and inclusive culture, rather than one that permits or turns a blind eye to bullying.
What is bullying?
There is no legal definition of the term bullying. However, there is helpful guidance from ACAS which describes the term as:
“Unwanted behaviour from a person or group that is either:
- offensive, intimidating, malicious or insulting
- an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.”
While bullying is typically associated with sustained activity that matches the above description, it may be a one-off incident.
How prevalent is bullying at work?
A survey by the CIPD (Chartered Institute of Personnel and Development) in 2020 showed that conflict is commonplace at work. Just over a third of employees (35%) indicated that they had experienced interpersonal conflict at work in the past year, whether this was either a one-off incident or a more sustained and continuing difficult relationship with a colleague. Of course, not all of these incidents may necessarily be sufficiently serious to be bullying. But, where unhealthy levels of conflict exists there is an increased risk of individuals considering the treatment and behaviours that they are exposed to as unwelcome and there naturally follows an increased level of risk to a business and to the wellbeing of the individual.
What can the implications of bullying be from an legal perspective?
In the absence of a legal definition of bullying, there is no specific direct claim that can be made because of bullying at work. However, bullying is very closely related to two types of claim:
- harassment (section 26, Equality Act 2010); and
- (constructive) unfair dismissal (section 94, Employment Rights Act 1996)
Harassment
If someone is being ‘bullied’ due to one or more protected characteristics, this will almost certainly meet the definition of harassment under section 26 of the Equality Act 2010. This would entitle the individual to bring a claim in the employment against the employer (and also potentially against the individual ‘bully’).
Constructive unfair dismissal
In the event that the employer has fundamentally undermined the implied term of trust and confidence in the employment relationship – commonly by failing to take steps to prevent bullying after it has been reported to them – then the employee can consider themselves as being dismissed by the employer. This claim is frequently very fact sensitive and can be unpredictable for both claimants and employers.
Looking beyond the law
As set out above though, whilst these legal claims exist, the most significant effect that bullying normally has in the workplace is the impact of morale, performance, attendance, turnover and health and wellbeing. Therefore, even if the law in this area did not exist, there are clear business and moral drivers for good employers to properly addressing and dealing with conflict in the workplace.
What are some practical steps to prevent bullying in the workplace?
The first step in preventing bullying is learning how to identify it. If you notice any of the above behaviours from a colleague/employee, there is a chance that bullying is occurring, especially if this isn’t a ‘one off’ incident though, again, the treatment does not need to be sustained to be classified as bullying. It is also key that your managers are clear on these behaviours and signals, so formal training is encouraged.
We would also strongly recommend that you have a formal anti-bullying policy; this may be conjoined with your anti-harassment policy, as they are closely linked. Having a formal policy on this sets out the standard required of all employees from the outset, and significantly weakens any argument of ignorance.
I have received a report of bullying, what do I do first?
Upon receiving a complaint of bullying from an employee, their colleague/manager, or a third party, it is key to proceed with sensitivity to all involved. If an employee wishes for the matter not to escalate to any formal action, you should certainly take this into account. However, you may wish to proceed on a more formal basis if your policy dictates as such, or if the allegation is so serious in nature that a formal process should be followed.
In any case, the complainant’s views should be sought before escalating the matter. Following this, you can make a decision on whether an informal process is all that is needed in the first instance, or if formal disciplinary action is required.
Where Stephens Scown can help
The Stephens Scown Employment team are experienced in dealing with these issues for both employers, and individuals who have been subjected to bullying. We can assist employers who wish to address bullying in the workplace, whether this is preventative action (such as policies, culture changes or training) or providing advice on the conduct of any disciplinary proceedings, or the defence of a claim.