Bullying in the workplace is in the Hot Seat

Bullying is very toxic and often can have devastating effects on individuals that suffer from it. Bullying in the workplace can be even more problematic as it could mean that individuals have to face this behaviour on a daily basis. Nonetheless, workplace bullying has once again come to the spotlight with the recent report which shone a light on the allegations of bullying against the Home Secretary, Priti Patel. A formal report that was published in November 2020 even found that serious allegations were well-founded. Nonetheless, Prime Minister Boris Johnson had refused to remove Ms Patel as a minister.

Politics aside, let’s break down the legal issues here…

Bullying in the workplace

In and of itself, bullying is not yet against the law, unfortunately. However, it can be in circumstances where the bullying is on the grounds of a protected characteristic and thus amounts to harassment under the Equality Act 2010.

That is not to say that bullying should be tolerated in the workplace and causes no issues… The next point to tackle is Employer’s obligation to handle issues

Generally, employers have an obligation to ensure that their employees have a safe space to work within – which includes protecting employees from bullying which often creates a hostile work environment. This can be done by having the right policies in place so that employees know that there is no tolerance for bullying in the workplace and also so that employees affected by bullying could know where to turn to if they are bullied at work. Employers can also ensure that employees who are in managerial positions have the correct training in place to deal with such complaints as and when they arise.

But what about the unintentional bullying?

We know that Ms Patel had issued a form of an apology and stated that “any upset [she has] caused was completely unintentional”. This has garnered a lot of traction and a new phrase has been coined – unintentional bullying. In his letter to the Times, John Bowers QC of Littleton Chambers had stated “…in 43 years of practice in [employment] law, I have never come across the notion of unintentional bullying. I must remember to use it as a defence in future” and this sums up the legal position on this matter. In short – unintentional bullying is not a defence in employment law.

Why? The legislation for harassment under the Equality Act 2010 on deals with the effect that this has on the person on the receiving end and it states that it must be “… unwanted conduct” that has the “purpose or effect of violating [a person’s] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment…” (Section 26 of the Equality Act 2010). Equally, for the purpose of a constructive dismissal claim (where bullying may have been the final straw) the threshold is the “employer’s conduct” (Section 95 of the Employment Rights Act 1996) and doesn’t deal with intention or lack thereof.

Let’s talk practicalities

It is incredibly important that employers take their responsibilities seriously and handle any allegations of bullying promptly and properly. If bullying allegations are not dealt with they could give rise to claims of discrimination (depending on the reasons and grounds for the bullying) and / or claims for constructive dismissal if the workplace is not a conducive environment for the employee who then, in turn, feels that they have no option but to resign. This would be because the employer has failed to take definitive action to handle the situation, even if not to prevent it.

Defending an Employment Tribunal claim is not easy – we are on hand on help you with that if this situation has arisen. However, we are firm believers that it is best to pre-empt things and avoid these situations altogether. The best way to do that is by ensuring that you have the correct processes in place and that they are adhered to properly within the business. Please do not hesitate to contract our expert employment lawyers on employment@anthonygold.co.uk and / or 020 7940 4060 who will be happy to advise you further.