Once a bully, always a bully? How to identify and deal with workplace bullying effectively

The recent resignation of Dominic Raab after complaints of intimidation and abuse of power were upheld against him has highlighted how important it is for employers to take proactive steps to to combat workplace bullying.

In this article, we consider how employers can define bullying, spot bullying behaviour by their staff and take effective steps to address it early.

How to define bullying behaviour

There is no specific legal definition of bullying, which means it is difficult for employers to clearly understand the behaviours, and patterns of behaviour which are generally understood to amount to bullying.

Employers often adopt a broad definition in their anti-bullying policies, although it is often set out without due regard to the employer’s industry, working environment, culture or practices. 

Indeed, one person’s idea of strong leadership might be regarded by another person as oppressive bullying and intimidation.  Some senior employees might have a very hands-on feedback style, which might strike others as verging on overbearing micro-management.  

According to ACAS in its guide to harassment and bullying in the workplace, bullying can be described as unwanted behaviour from a person or group that is either:

• “offensive, intimidating, malicious or insulting” or

• “an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”.

This is a good starting point for any internal policy, training or guidance.  However, most anti-bullying policies would benefit from examples of prohibited behaviours which relate to the employer’s particular business.    

What does the case law say?

 The High Court has considered the meaning of bullying and referred to the findings in three cases:

1. Waters v Commissioner of Police (2000): It is not every case of bullying which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from their colleagues.
   
2. H v Isle of Wight Council (2001): The criterion for what constitutes bullying should not be judged solely by the subjective perception of the victim himself, but involves an objective assessment of the observed behaviour taken in conjunction with any apparent vulnerability of the victim of the bullying.
   
3. Majrowski v Guys and St Thomas’s NHS Trust (2007): The courts must distinguish between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable.

In the recent investigation, Mr Raab argued that the threshold for bullying had been set too low, and that his behaviour should only count as bullying if he knew it was bullying, or clearly should have known.

The report into the claims disagreed, saying it was the victim’s experience that mattered more than Mr Raab’s intention. Bullying could constitute “personal styles which feel like bullying (or other misconduct) to the individual but are not intended to be so and where the perpetrator may often be unaware of the impact”.

How can we spot bullying behaviour?

Acas makes clear that bullying can be a regular pattern of behaviour or a serious one-off incident. The guidance gives examples such as:

• spreading malicious rumours about someone
• consistently putting someone down in meetings
• deliberately giving someone a heavier workload
• excluding someone from team social events
• consistently undermining a manager
• posting humiliating, offensive or threatening comments or photos on social media.

The examples given by Acas appear to recognise that bullying can often be perpetrated by employees in senior roles and positions of power, with the ability to influence their colleagues’ day-to-day work experience.

That said, bullying can also occur between peers in a team or (less commonly) by a more junior individual.

Employers should be on the lookout for patterns of inappropriate behaviour across the business, rather than assuming it is only relevant to line managers and senior management.

The dangers of leaving bullying unchecked

Abusive supervision of the kind mentioned above can lead to a whole team of employees feeling intimidated, harassed and victimised. This type of behaviour could easily become prevalent if employees feel they must emulate senior figures’ abusive behaviours to succeed.

Although there is no express statutory prohibition against bullying in the workplace, employers can still face legal liability if they do not take care to monitor and address any behaviour which might amount to bullying.

For example, affected employees could bring potential legal claims of harassment and discrimination on the basis of a protected characteristic under the Equality Act 2010, personal injury, and/or constructive unfair dismissal arising from the employer’s fundamental breach of contract in failing to prevent the bullying:

• If bullying is related to any of the nine protected characteristics under the Equality Act 2010 it could amount to harassment or discrimination, for which the potential compensation awarded by an employment tribunal is uncapped and can include an award of injury to feelings of up to £56,200 (depending on the seriousness of the behaviour).

• An employer has a duty of care under common law to provide a safe and stress-free place of work for all staff.  Prolonged bullying can deteriorate an individual’s physical and mental health, and potentially give rise to a personal injury claim.  A victim of bullying could be signed off by his or her GP with work-related stress and anxiety, resulting in long periods of absence from work.   For an employee to have a claim for personal injury, they must show they have a medically recognised psychological injury or illness. However, the court has found that an employer will only be liable for an employee’s ill health in the circumstances if it is on plain notice of an employee’s stress, or vulnerability to stress, and then fail to address the issue.  Compensation may be significant: the 2022 Judicial College Guidelines provide guidelines of average compensation for severe psychiatric damage from stress at work of between £54,830 and £115,730. 

• Where an employee feels they have no choice but to resign because of bullying, this could give rise to a constructive dismissal claim based on the employer’s breach of the implied term of mutual trust and confidence.  In Horkulak v Cantor Fitzgerald International (2003), it was held that a CEO’s campaign of bullying, harassment and intimidation as a feature of an aggressive management style amounted to such a breach of contract.  Note that an employer is unable to argue in its defence that it has the same style of management as the rest of the relevant industry.

Practical steps

Employers can focus on mitigating the risks of bullying and harassment in the workplace through a number of key steps:

1. Anti-harassment and bullying policy: Employers should have an anti-harassment and bullying policy in place. This will demonstrate commitment to providing a working environment free from bullying, but also demonstrate the employer’s intention that all staff are treated and treat others with respect. The policy should ideally be non-contractual, allowing employers to keep it up to date.
   
   It should cover bullying which occurs at work and work-related events, such as business trips or social functions. The policy should define what the employer considers to be bullying, and it should cover the behaviour of staff, but also of third parties such as customers, suppliers or visitors. Employers could soon face enhanced obligations to protect staff from third party harassment if the Worker Protection (Amendment of Equality Act 2010) Bill becomes law. 
   
2. Training: Regular and effective training in relation to anti-harassment and bullying is a key component of creating a positive and inclusive workplace culture. The whole workforce should understand the contents of the policy and the employer’s behavioural expectations. 
   
3. Be pro-active: All businesses should ensure that supervisors are proactive in looking out for behaviour which may be considered bullying by the recipient.  If negative behaviours are caught at an early stage, then this could prevent formal grievances or legal claims which might arise if intimidating or offensive behaviour is not challenged. 
   
   As well as the general training recommended above, consider whether specific training in feedback, supervision, delegation or other management skills should be provided for managers.   
   
4. Deal with grievances and complaints promptly: When handling a bullying complaint from an employee who suffered or witnessed alleged bullying, employers should deal with the matter as quickly as possible and in accordance with internal investigation and grievance procedures.
   
   Broadly, first talk to the person raising the complaint to understand the issue and what might resolve it. Ensure that you look at the complaint in a way that is fair and sensitive to the person who made the complaint, anyone who witnessed the alleged behaviour, and the person accused of bullying. There will inevitably be sensitivities around confidentiality, the seniority of the individuals concerned, and the likely impact on other employees and the business.
   
   A key consideration will also be the necessity of taking disciplinary action against the perpetrator, if it becomes clear that they have behaved in an unacceptable way.