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16 March 2016

Bullying at work: what’s the bottom line?

4 mins

Many of my clients are surprised to hear that there is no law against ‘bullying’ at work and ‘bullying’ is not defined in any employment law statutes. I tend to follow up with questions like, ‘what kind of bullying are you experiencing?’ and ‘why do you think you are being bullied?’ to investigate whether there is a potential claim under existing laws.

If the bullying is related to one of the Equality Act 2010’s nine protected characteristics (race, sex, disability, etc.) or related to whistle-blowing then it may amount to discrimination or unlawful detriment and you could claim compensation in the Employment Tribunal. In certain limited circumstances it can be appropriate to resign in response to being bullied and then claim constructive unfair dismissal. However, if the bullying isn’t discriminatory or related to whistle-blowing (or some other unlawful reason), and it is not advisable to resign, then the only legal route left open is likely to be the Protection from Harassment Act 1997.

The Protection from Harassment Act is designed to protect people from being subjected to a ‘course of conduct’ that causes them ‘alarm’ or ‘distress’ and is usually relied on in criminal cases. However, it can be and has been relied on by employees against their employer for what is effectively workplace bullying. Those claims have to be brought in the civil courts because the Employment Tribunal doesn’t have jurisdiction.

There are two reasons why bringing a civil court harassment claim is unappealing in the majority of cases. First, you can’t claim compensation for injury to your feelings in the way you can for a discriminatory harassment claim. This means that in order to be compensated for the psychological impact of the bullying you need to have suffered an injury to your health in the form of a recognisable psychiatric injury. Second, as any personal injury lawyer will tell you, proving that one or more specific acts of bullying caused you to suffer a psychiatric injury is an uphill struggle at the best of times. In the majority of bullying cases there has been serious injury to feelings but not a psychiatric injury, and where there has been a psychiatric injury, proving the element of causation is often extremely difficult.

So, what is the answer? Legal action should usually be a last resort. Initially you need to look at your options within your organisation. If your company has policies and procedures, they are likely to have a policy that covers bullying and harassment, and a procedure for dealing with it. Your options are likely to include: an informal discussion, mediation, or writing a formal complaint (grievance letter). In my experience, whichever strategy you adopt, taking legal advice helps to clarify where you stand and build your confidence.

Once you have identified your options and decided a strategy, it is advisable to reflect on your mind-set and consider whether you are approaching the situation in a useful way. If you are feeling persecuted and powerless, it will serve you well to address this and try to strengthen your self-confidence. You will need to have the courage of your convictions to confront the problem and get through a dispute resolution process, which will take time.

It is a cliché to say it, but there are always two sides to the story, and people who are accused of bullying or harassment will almost certainly deny the accusation. To prevent this from becoming an obstacle, you should be prepared to listen to what the other person has to say in response, and find a way to respond to them constructively, even when they are not being constructive. If you approach the situation with an open mind you are much more likely to receive an open-minded response.

The conciliatory solution, if one can be found, lies in both sides trying to respect each other’s point of view and reach an understanding about how the relationship should operate in the future. Being bullied is stressful and distracting, and tends to get worse over time, so it is usually better to address the unwanted behaviour sooner rather than later.

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