It can frequently come as a surprise to employees on the receiving end of bullying in the workplace, that there is no specific protection against it in employment law (unless that bullying is related to one of the nine “protected characteristics” in the Equality Act 2010: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation).
On the face of it, the only recourse that a bullied employee may have, if their employer fails to take adequate steps to address bullying, is to resign and claim “constructive dismissal” (a form of unfair dismissal) in the Employment Tribunal. If they were to do so, they would seek to argue that their employer’s behaviour, either in terms of the bullying, or by failing to address it, amounts to a fundamental breach of contract. In the absence of discrimination because of a protected characteristic, an employee bringing such a claim would need to have at least two years’ continuous employment.
Unfortunately, constructive dismissal claims can be very hard, although not impossible, to win, not least because the onus would be on the employee to demonstrate that their employer’s behaviour was so bad that they had no option other than to resign. This can be a high hurdle to overcome, particularly for an employee who may have been subjected to a prolonged period of bullying, and which may have had a profoundly negative effect on their mental health.
All employers have a common law duty to take reasonable care for the safety of their employees, and they have a duty to ensure that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working. This obligation is also enshrined in various pieces of health and safety legislation, including the Health and Safety at Work etc Act 1974 the Workplace (Health, Safety and Welfare) Regulations 1992 and the Management of Health and Safety at Work Regulations 1999.
Employers who fail to prevent bullying, even where it is not related to a protected characteristic, run the risk of breaching these duties, particularly where an employee suffers physical or mental injury as a result. An employee who suffers such an injury may have a personal injury claim against their employer, in addition to a claim of constructive dismissal; where the bullying is related to a protected characteristic, they may also have a claim of discrimination and/or harassment.
The risks to employers who fail to tackle complaints of bullying head on, can therefore include potentially expensive litigation and significant reputational damage, not to mention awards of compensation to employees who have suffered. Even if bullied employees do not pursue such claims, bullying in the workplace can frequently lead to increases in sickness absence, lack of enthusiasm and overall loss of productivity among employees for whom the workplace has become somewhere to be feared and dreaded. Bullying should never be excused as “firm management,” not least because managers who bully their staff rarely get the best out of them. This alone should give reasonable employers motivation to ensure that bullying is not tolerated.
Employers would be well advised, therefore, to ensure that they have fair and transparent grievance and anti-bullying policies, so that employees know, if they have concerns, that they can be raised in a supportive environment, and addressed seriously. Complaints should be addressed as speedily and as seriously as possible, allowing for a reasonable investigation to take place. Where bullying behaviours are identified, disciplinary sanctions should be applied consistently, irrespective of seniority or rank.