Bullying in universities – time for action: legal issues for university employers

Here is an interesting fact: bullying itself is not against the law (in case you're interested, that's taken directly from the gov.uk webpage on workplace bullying no less). And it's true: in the UK there is no freestanding legal claim for bullying that employees can bring to the Employment Tribunal (or any other UK court for that matter). By extension, there is also no legal definition of bullying.

Legal issues for university employers

Before you breathe a collective sigh of relief, however, this does not absolve universities from responsibility for bullying. Let's also consider these equally interesting facts:

• Although it is not possible to make a claim for bullying in isolation, it is possible to bolt it on to something else. For instance:

1. 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.
2. 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.
3. An employee suffering from bullying might also be able to claim under the Protection from Harassment Act 1997, which prohibits anyone from pursuing a "course of conduct which amounts to harassment," which that person knows or ought to know amounts to harassment. Significantly, there is no need to show that the conduct is based on a protected characteristic. Universities can be vicariously liable for harassment under the Protection from Harassment Act and, unlike harassment under the Equality Act, there is no "reasonable steps" defence available.
4. If an employee feels that it is no longer possible to carry on working because of the bullying they are suffering 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.
5.  A complaint about bullying may, in some circumstances, amount to a protected disclosure under whistleblowing legislation (for example if it breaches a legal obligation – such as discrimination – or if it relates to the health and safety of any individual – see below). 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 the following:

1. Universities are under a specific statutory duty under the Health and Safety at Work etc Act 1974 to ensure so far as is reasonably practicable the health, safety and welfare of their employees. The Management of Health and Safety Work Regulations 1999 require employers to undertake a "suitable and sufficient" assessment of the health and safety risks that employees are exposed to at work, including identifying measures to try to prevent and combat risks at source. Breach of these may result in employers facing enforcement action by the Health and Safety Executive, including criminal sanctions in serious cases.
2. There is also a common law implied duty which requires employers to take reasonable care of their employees' safety. This extends to ill-health caused by stress. A breach of this might give an employee a personal injury claim under the tort of negligence.

• A study by Acas at the end of 2015 estimated that the annual economic impact for businesses of bullying-related absences, staff turnover and lost productivity was almost £18 billion.

• The impact of a poor organisational culture, in which bullying is allowed to take place unchecked, cannot be underestimated. It can lead to low staff morale, high staff turn-over, legal claims, and reputational and financial risk.

Bullying in universities – time for action: What needs to happen?

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2018