Earlier on this year, a working group co-chaired by the Charity Commission reviewed the respective roles and responsibilities of those working in and with the charity sector to explore ways to address bullying and harassment. The working group featured representation from DCMS, ACAS, ACEVO, NCVO, and UNISON, amongst others, and following on from its discussions the Charity Commission issued a press release clarifying its own regulatory role in this area.
In summary, charities (and in particular their trustees) will be held to account by the Charity Commission if they fail to address problems of bullying and harassment. The Commission is clear that the kind of poor organisational culture in which bullying can take place unchecked cannot be accepted in or by charities. From a broader perspective though, charities (just like other types of organisations) should be aware that this kind of culture can lead to low staff morale, high turnover, legal claims and reputational and financial risk. Charity trustees might therefore also find it helpful to be aware of the relevant employment law considerations when it comes to bullying and harassment – indeed, the Commission has flagged compliance with employment law and tribunal procedures as important here.
So in light of the working group’s findings, we have taken a look (from both a charity and employment law perspective) at the responsibilities owed within charities when dealing with bullying- and harassment-related issues, how bullying claims arise (and can best be avoided…), and when and how the Charity Commission might intervene.
Trustee responsibilities and bullying
Who is responsible?
Ensure that clear policies and processes are in place to cover possible instances of bullying and harassment, so that staff understand (and can be expected to follow) clear procedures when issues arise. The Commission’s safeguarding advice expands on the sort of checking and challenging trustees should periodically carry out to make sure policies are fit for purpose.
Ensure that allegations of bullying are handled appropriately, and not ignored or swept under the rug. This will include action to:
Make certain that bullying and harassment allegations are handled in accordance with the requirements of employment law and other relevant legislation (as discussed below).
Be mindful of the Charity Commission’s Serious Incident Reporting regime – the working group and the Commission are clear that it is not only proven instances of bullying and harassment that should be reported – allegations in themselves, when serious enough, should be reported as serious incidents.
The various responsibilities above form part of charity trustees’ overall legal duties to act in the charity’s best interests, manage its resources responsibly, and ensure that it is accountable (to staff, volunteers, beneficiaries, and other stakeholders). Acting in contravention of these charity law duties could attract unwelcome consequences for trustees and their charities, including intervention by the Charity Commission.
Bullying claims and how to prevent bullying
What would a bullying claim look like?
It is not possible for employees to bring a claim for bullying in isolation, they have to bolt it on to something else. For example:
An employee might be able to bring a claim for harassment under the Equality Act 2010 if the unwanted conduct is related to a protected characteristic (eg sex, race, age, disability etc), and it has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
If an employee can show that they are being bullied because of a protected characteristic, they may also be able to claim that the behaviour amounts to direct discrimination.
If an employee feels that it is no longer possible to carry on working because of the bullying they are suffering in the workplace, they may argue that this amounts to a breach of the implied term of trust and confidence, entitling them to resign and claim constructive unfair dismissal.
A complaint about bullying may, in some circumstances, amount to a protected disclosure under whistleblowing legislation. In those cases, employees will be protected against detriment or dismissal as a result of making such a disclosure.
Employees who are bullied may well suffer from stress-related illness as a consequence of the bullying. While there is no specific legislation that requires employers to prevent stress at work, in the context of bullying-related stress it is important to bear in mind that employers are under a specific statutory duty under the Health and Safety at Work Act 1974 to ensure so far as is reasonably practicable the health, safety and welfare of their employees.
How to mitigate the risk of bullying arising in the workplace?
Bearing in mind the above, conveniently the key employment considerations here very much tally with the Charity Commission’s expectations, as set out in its press release. To fend off the possibility of claims like those above arising, charities (just like any other sort of employer) should:
Take allegations of bullying seriously (whether or not connected to a protected characteristic).
Have a formal anti-harassment and bullying policy (which also covers cyberbullying) in place. Having a whistleblowing policy is also recommended. In addition, employees should receive training on the policies.
Encourage a “speak out” and open culture.
Take prompt and appropriate action where staff do speak up.
Embed a good workplace culture where professional standards are maintained and move away from any conduct which can allow bullying to flourish (for example, aggressive or authoritarian management style, excessive demands on employees to meet targets / deadlines or fear or retribution for raising concerns).
Intervention by the Commission
When will the Commission intervene?
The Charity Commission will prioritise its involvement in charity bullying and harassment issues where it will be addressing instances posing the highest risk of harm, and has pointed to circumstances where, for example, widespread or systemic bullying has not been addressed by trustees.
What will intervention by the Commission look like?
The Commission has a range of responses available to it where it seeks to intervene on bullying and harassment issues. On the gentler end, the Commission can issue regulatory advice to trustees, but in response to more serious examples of mismanagement or governance failures relating to bullying the Commission can open a statutory inquiry into a charity.
The Commission’s press release suggests that (where it intervenes) it will focus on the governance of the charity concerned, with the aim of making sure that trustees are responding to bullying incidents appropriately (so as to prevent further wrongdoing and harm within the charity).
Limits to the Commission’s intervention
The Charity Commission is keen to clarify that the resolution of individual employment issues does not fall within its purview – these are to be addressed through grievance procedures and the employment tribunals (criminal offences, meanwhile, must obviously be dealt with by law enforcement / the police).
However trustees should be aware that the Charity Commission’s range of regulatory powers is extensive – it can suspend or remove trustees, direct trustees to take particular actions by order, and establish a scheme for the administration of a charity where it deems any of these actions necessary in order to protect the charity.
Consequently charity trustees would do well to be mindful of their obligations relating to bullying and harassment, and should make sure they deal with incidents in line with the expectations of employment law and the Charity Commission.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, December 2022