The recent resignation of the Deputy Prime Minster, Dominic Raab, serves as an important reminder for employers of the importance of fairly and promptly addressing allegations of bullying in the workplace, which can be perpetrated by employees at any level of seniority. The latest survey by the Chartered Institute of Personnel and Development (CIPD) conducted in 2019 found that 15% of employees had experienced workplace bullying in the previous three years.
Identifying bullying – what is it?
Although there is no statutory definition of bullying, the Advisory, Conciliation and Arbitration Service (ACAS) describes it as unwanted behaviour which is “offensive, intimidating, malicious or insulting” or “an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”. It may take the form of repeated patterns of behaviour or a serious one-off incident, and can occur face-to-face, through correspondence or online.
The examples of bullying given by ACAS include an employee being repeatedly put down at meetings, being given a heavier workload than colleagues or having a malicious rumour spread about them. It is also possible for more junior employees to bully senior employees, such as by showing continued disrespect or undermining their orders (known as ‘upward bullying’).
Nevertheless, it is important to distinguish bullying from personality clashes, whereby two employees do not agree with each other but neither of them act in an abusive or harmful way.
An employer’s responsibilities
Every employer has a duty of care towards its employees to protect them whilst they are at work, which includes dealing with bullying. If an employer fails to do this, there is a risk that an employee may resign and bring claims such as constructive dismissal.
Where the unwanted behaviour relates to an employee’s protected characteristic (such as race or sexual orientation), this may also amount to harassment under the Equality Act 2010. An employer will be liable for harassment perpetrated by individual employees unless it can show that it did everything that it reasonably could to protect the harassed employee from it.
Dealing with bullying complaints
An employer who receives a bullying complaint should treat it seriously and act promptly. It is important to speak to the person who raised the issue to fully understand it and how they might like it to be handled, which could range from keeping an eye on the situation to a formal complaint.
The most appropriate course of action will depend on a variety of factors, particularly the severity of the accusation. Where the complainant makes a formal complaint or the allegations are very serious, an employer should deal with it formally. In other situations, they may attempt to resolve it informally.
Taking an informal approach
An informal approach may be appropriate where there has been a misunderstanding or an employee is unaware of how their actions are affecting their colleagues. This approach will involve speaking to the parties concerned, either privately or together at a meeting.
If the parties agree, an employer may consider mediation, whereby an impartial third person helps the parties find an agreed solution. Mediation is increasingly popular in workplace disputes as it can be a quick but effective way of resolving complaints, as the parties are able to take control and openly discuss the impact of their behaviour.
Nevertheless, an employer should be mindful of when an informal approach like mediation may be inappropriate, particularly where the complaint is very serious. In these circumstances, or where an informal approach is unsuccessful, an employer should adopt a formal procedure instead.
Following a formal procedure
Ideally, an employer’s policies will set out the procedure that they will follow in dealing with bullying complaints. If not, an employer should follow a formal grievance procedure.
This will involve a person being appointed to investigate the complaint, who should be impartial to ensure a fair and objective investigation. The investigator should prepare an investigation plan, including an anticipated timeframe, before beginning their investigation.
In some circumstances, an employer may need to separate employees whilst it conducts its investigation. It may even consider suspending the employee accused of bullying, but should treat this as a last resort where no alternative options are available.
The investigator should collate evidence that supports and undermines the complaint, particularly by speaking to the parties involved and any witnesses. It may be helpful to ask for copies of emails or text messages, or check CCTV footage, depending on the nature of the complaint.
At the end of the investigation, the investigator should produce a report which records key information such as details of the allegations, the evidence they gathered, their findings and what action they recommend. The content and result of the investigation should be kept confidential as far as possible.
If an employer fails to follow a fair procedure – such as by failing to conduct a reasonable investigation – any action that it takes is likely to be unfair, which may have legal consequences.
Continuing to a disciplinary procedure
Where the investigator upholds the bullying complaint, it may be appropriate for an employer to invoke their disciplinary procedure. If possible, this disciplinary procedure should be conducted by somebody more senior than the investigator.
The outcome of this disciplinary procedure could include a first or final written warning or even dismissal. However, dismissal will usually only be appropriate where the employee’s bullying amounts to gross misconduct or they had already been formally warned about their behaviour and the warning is not spent.
An employee must be offered the chance to be accompanied to a disciplinary hearing that may result in formal disciplinary action by either a work colleague or trade union representative, and they must be given the right to appeal against any formal action taken against them.
Preventing bullying complaints
The most effective way of avoiding bullying complaints is to stop it from happening in the first place. To do this, employers should implement robust policies which affirm their zero tolerance stance towards bullying and support an inclusive and tolerant working environment. These policies should be clearly communicated to all staff and reviewed regularly to take into account updates to the law and best practice.
All staff should receive regular training about how to comply with their obligations and what to do if they experience or witness bullying. It may also be appropriate to provide additional training to managers about specific issues, such as sexual harassment and unconscious bias.
In addition, even where an employer resolves a bullying complaint, it should use this to explore measures to prevent similar incidents happening in the future.
If you have any queries about any matters raised in this article, or any other employment law matters, please contact the Taylor Walton Employment Law Team by email or by calling 01582 731161.