Is bullying really just a childhood problem

I’m sure we’ve all been there, either ourselves or with our children – at the mercy of the bully. We’ve been told to ‘rise above it’, that ‘they’ll get bored and find someone else to pick on’ or that ‘they’ll grow out of it’. To some extent this is true and good advice, but what if the bully doesn’t grow up and continues to be a bully in the workplace?

In my experience, bullying tends to be a life long problem in one form or another. It is a serious issue that is prevalent in the workplace and can have a direct impact on Company culture and productivity. I regularly find myself advising clients on how to deal with grievances about bullying and harassment in the workplace and how to deal with the perpetrator. However, there are always differing opinions which makes it a difficult issue to deal with. One employee’s perception of bullying is another’s constructive criticism and firm management. One employee’s perception of bullying and unacceptable behaviour is another’s ‘equal opportunities bully’ – they’re like that with everyone.

There is no statutory definition of bullying, but it can perhaps best be described as offensive, intimidating, malicious or insulting behaviour involving the misuse of power (not necessarily authority), that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Harassment has a statutory definition and is defined under the Equality Act as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

Contrary to popular belief, strictly speaking, there is no such thing as an Employment Tribunal claim for bullying. Equally, there may be no such thing as a claim for harassment in the everyday sense of the word. In an employment law setting, harassment has an entirely different meaning, whereby you can only be harassed because of a ‘relevant protected characteristic’, for example, because you are a woman, because you’re disabled, because you’re black.

So, does this mean as an employer, you are safe from the peril of the Employment Tribunals where bullying and harassment is concerned? Absolutely not. The following are claims you may be at risk of in connection with bullying and harassment.

Constructive dismissal

If an employee feels they are being bullied or harassed, they may choose to resign their employment as a result. They may elect to bring a constructive unfair dismissal claim, citing the bullying as the reason for their departure. Constructive dismissal is where the employee resigns and can show that they were entitled to do so by virtue of the employer’s conduct. An intolerable working environment may constitute a breach of the implied term of trust and confidence between the employer and employee. Equally, in circumstances where the employer has failed to take steps to address the situation, there may be a failure to provide a suitable working environment.

Discrimination

If an employee feels that the harassment is because of a protected characteristic, this may be a form of discrimination and may entitle them to bring a discrimination claim in the Employment Tribunal. It is not a requirement for an employee to have left employment to bring such a claim, however this is usually the case. A discrimination claim would usually be coupled with a constructive dismissal claim and if the employee was successful in their discrimination claim, it would be incompatible for a Tribunal to find that they were not entitled to resign and ought to have carried on working there.

Health and safety

Under the Health and Safety at Work Act 1974 employers are responsible for the health, safety and welfare at work of all employees. Breach of contract may include a failure to protect an employee’s health and safety at work.

Guidance

I suspect that bullying and harassment will never truly be capable of being eradicated in the workplace, but the following may serve as useful guidance to employers:

1. Ensure your disciplinary policy expressly refers to bullying and harassment as an example of gross misconduct.
2. Take the issue seriously as bullying and harassment can have a direct adverse impact on working relationships, productivity and in turn, Company performance and profitability.
3. Consider the perception of the complainant as well as whether such behaviour may reasonably be expected to have such an effect. If the allegation of bullying and harassment is not upheld, this will not necessarily mean it was false or not made in good faith.
4. Whether or not a complaint about bullying and harassment is upheld, you should give consideration how to best manage the working relationship going forward, for example, mediation or counselling and any changes which may be beneficial such as changing the reporting structure or providing management training
5. Be mindful that bullying may occur in a variety of formats and also outside of the workplace, for example on social networking sites or at a social function. Be alert to the possibility that the bully or harasser may be a third party such as a customer, supplier or visitor.

Askews Legal LLP -Coventry Solicitors.