May 9, 2023
What is bullying at work?
One of the biggest problems is that the law doesn’t actually define the word “bullying”. Unlike phrases such as “discrimination”, “harassment” and “victimisation” (each of which has a definition contained in the Equality Act 2010), when it comes to defining bullying, the law can’t help us. That said, ACAS suggests that bullying behaviour is “malicious or offensive” or can be “an abuse of power that undermines, humiliates, or causes physical or emotional harm to someone”.
So should employers define bullying themselves?
Whilst bullying can be subjective, the vast majority of employers will have an anti-bullying and harassment policy. It’s highly advisable that this policy contains a definition of what kind of behaviour that particular employer considers to be bullying. This should provide a yardstick to go by if and when an allegation of bullying is raised by an employee. This will be preferable to a situation in which an employee raises an allegation of bullying and the employer and employee then end up disagreeing on what the definition of bullying is.
How should employers handle bullying complaints?
Employers should treat bullying complaints formally, just as they would grievances. This means getting someone who is independent of the complaints to investigate them fully and fairly before deciding on a course of action. Our employment team regularly investigates bullying complaints on behalf of employers, as this ensures a level of independence and expertise in handling those complaints. On the back of any investigation findings, an employer may need to conduct a disciplinary hearing with someone, roll out training for staff, or take some other appropriate steps.
Can an employee sue for bullying?
An employee can’t sue for bullying at the Employment Tribunal. However, if the bullying relates to a protected characteristic under the Equality Act (e.g. age, race, sex, disability etc), an employee could have a discrimination or harassment claim if they’ve been bullied. Additionally, being bullied at work could give rise to a claim for constructive unfair dismissal if an employee can say that their employer has breached their employment contract or their duty of care towards them and has been forced to resign as a result. Defending Employment Tribunal claims can be risky, costly, disruptive, and can generate bad press.
What can an employer do to protect themselves?
An employer should have a robust and well-thought-out anti-bullying and harassment policy, and should have good processes for handling bullying complaints. You should also think about what proactive steps you can take – such as rolling out staff training on acceptable conduct at work, equality and diversity and related issues.
If you need any further help or advice, please contact Rachel Ford-Evans on RFord-Evans@darwingray.com or 02920 829 120 for a free initial chat to see how we can help you.
