This is part one of our three-part mini-series focusing on bullying. Part two will consider the difficulties of making factual findings when the allegations are highly subjective and feel more like a question of perception than facts to be found. The final part will look at providing meaningful and appropriate support to the employee accused of bullying.
Why focus on bullying? We are seeing an increasing number of cases involving bullying of all types. This includes the common areas such as allegations from a junior staff member against a more senior colleague, but also much more nuanced cases of bullying through management style and cases of upwards bullying. Often one allegation is met by a counter allegation, which can be hard to untangle.
Bullying can be a serious allegation to make. It can have significant (and in some cases career-ending) implications for the person accused. It can be damaging for an organisation which may be seen as having allowed a bullying or “toxic” culture to embed, and for those who feel they have been bullied at work, the impact can be significant and long-lasting.
It is an issue that any organisation will want to investigate properly, and investigations in this space are becoming increasingly complex especially where complaints are anonymous (which appears to be more common). In recent years we have seen a steady stream of high-profile figures being accused of bullying across various sectors, and the fallout can be significant.
Part one: what is bullying?
Any fair investigation into alleged bullying needs to be clear as to what definition of bullying is being applied, and there is no legal definition.
This can create challenges, especially where the conduct is lower level and is perceived by the parties involved very differently. For example, what the complainant sees as bullying, the accused may consider fair and necessary line management.
We have seen a wide range of conduct being described as bullying, from late night emails, work allocation decisions, aggressive formatting in communications, lack of promotions, performance management steps, to verbal abuse and public shaming.
Which definition to use?
The starting point should always be your organisation’s definition as set out in relevant policies.
The employer’s anti-bullying policy or equivalent is the logical place to start, and the investigator should be directed to this and given a copy (along with other applicable policies) at the outset.
You may also have a code of conduct which sets out what behaviour is and is not acceptable.
Ideally the policy would include a non-exhaustive list of examples of what bullying could be in practice. Even if the alleged conduct is not included in such a list, the investigator can still reasonably be guided by it, for example, by considering whether conduct is similar or analogous.
Looking to the governing policy document is the approach taken in even the most high-profile investigations. Sir Alex Allan conducted an investigation into allegations of bullying against Priti Patel MP while she was Home Secretary. He applied the definition adopted by the Civil Service which defined bullying as “intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down.” He found that, in his view, some examples of Ms Patel’s behaviour had met this definition, even though “there was no evidence that she was aware of the impact of her behaviour”. In other words, even though she had not intended it, it could still be bullying.
This spring, Adam Tolley KC published his investigation report into bullying allegations against Dominic Raab during his time as Deputy Prime Minister. The report discussed the definition of bullying in some detail and, like Sir Alex, was looking to see what standards of behaviour applied. The report looked at the wording of the Ministerial Code which was applicable in that case. And Mr Tolley KC was also guided by (among other things) how bullying for the purposes of the Ministerial Code had been understood by the courts (R (FDA) v Prime Minister and Minister for the Civil Service ). This case said:
“… the Court accepted that there was a broad consensus that conduct would fall within the description of ‘bullying’ if it can be characterised as: (1) Offensive, intimidating, malicious or insulting behaviour; or (2) Abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.”
The Court also stated: “that conduct may fall within the first limb of the definition, and so constitute bullying within the meaning of … the Ministerial Code, whether or not the perpetrator is aware or intends that the conduct is offensive, intimidating, malicious or insulting.”
If your organisation does not have a definition of bullying or any relevant guidance, a sensible next stop would be to look to the ACAS guidance. This is not binding on employers but is a credible and helpful source of guidance.
ACAS says bullying “can be described as unwanted behaviour from a person or group that is either:
- offensive, intimidating, malicious or insulting
- an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”
And that “Bullying might:
- be a regular pattern of behaviour or a one-off incident
- happen face-to-face, on social media, in emails or calls
- happen at work or in other work-related situations
- not always be obvious or noticed by others
- It's possible someone might not know their behaviour is bullying. It can still be bullying even if they do not realise it or do not intend to bully someone.”
It goes on to give some examples which include:
- “constantly criticising someone's work
- spreading malicious rumours about someone
- constantly putting someone down in meetings
- deliberately giving someone a heavier workload than everyone else
- excluding someone from team social events
- putting humiliating, offensive or threatening comments or photos on social media”
ACAS accepts that bullying can happen upwards, ie from a junior to a more senior team member, so although an “abuse of power” is commonly understood as a feature of bullying it is not necessary. We have seen allegations of bullying made by senior employees against their direct reports or other more junior employees.
What about harassment?
The definitions above are all slightly different, but fundamentally seek to capture conduct that falls below what is acceptable in the workplace and is offensive, insulting or threatening for someone else to experience. And it will not have escaped your notice that the language and approach somewhat echo the legal definition of harassment in the Equality Act 2010 (the EqA), and these two allegations commonly come together.
The EqA definition of harassment is unwanted conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person.
However, what is key for harassment under the EqA is that the conduct in question must be related to a relevant ‘protected characteristic’, ie sex, disability, race, sexual orientation, religion or belief, gender reassignment etc.
We do see definitions of bullying used by organisations which replicate the language of harassment but drop the need for the conduct to be related to a protected characteristic, and this can be a helpful approach.
Objective or subjective?
ACAS accepts (as did Sir Alex Allan and Adam Tolley KC) that someone can bully someone else without intending to. This has to be right. Someone’s lack of insight into the impact of their own behaviour does not mean their behaviour is acceptable or should be tolerated.
Looking at it from the other side, although the impact of the behaviour on the individual who has made the allegation is highly relevant, this cannot be enough to make a finding of bullying. If that were the case and the definition were wholly subjective (ie the employee felt like they were being bullied so therefore they were) this could meant that anything (however small or reasonable) could constitute “bullying”. Such an approach cannot be sustainable. For example, an employee could consider their manager’s attempts to address poor performance as bullying even if the employee’s performance is indeed poor and needs addressing.
The inclusion of an “objective” dimension to the assessment of bullying is therefore important, and it is the approach taken with harassment under the EqA, which states that in deciding whether harassment has taken place or not the following must be taken into account:
- The perception of [the person alleging harassing],
- The other circumstances of the case, and
- Whether it is reasonable for the conduct to have that effect.
How to tread the path between the objective and subjective elements of bullying is not always easy and will be a focus of a later blog in this mini-series, however a good starting point will be:
- Looking beyond the label of “bullying” to the specifics of the conduct,
- Cross-referencing to any examples in your policies or codes of conduct, and
- Assessing the conduct in context.
Some of the uncertainty about the definition of bullying may become a thing of the past. The Bullying and Respect at Work Bill was presented to MPs on 11 July 2023, and proposes, among other things, to introduce a statutory definition of bullying which would enable bullying claims to be considered at the Employment Tribunal. The Bill will have its second reading in the Commons in November, so watch this space.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2023