Workplace Bullying: New Laws for an Old Problem?

There is currently no distinct law in the UK that specifically governs workplace bullying.

However, a Private Members Bill that was recently presented in Parliament has proposed a new statutory definition for bullying and shone a light on a persistent problem in UK workplaces.

In the article below, Myerson's team of specialist employment lawyers explore the risks that workplace bullying poses for employers and gives guidance on how they can mitigate those risks.

The proposed Bill, The Bullying and Respect at Work Bill, which is still in the early stages of its reading in Parliament, states that a new statutory definition for bullying would better enable claims relating to workplace bullying to be brought in an employment tribunal.

Currently, there is little information about what the definition would be or how such claims would work. 

In addition, the Bill also proposes to:

• Introduce a new Respect at Work Code to provide guidance to employers on how to prevent and deal with bullying.
• Establish mechanisms that employers must use to report and investigate incidents of workplace bullying.
• Give power to the Equalities and Human Rights Commission to investigate reports of workplace bullying and, where necessary, to take action.

The Bill claims to be a positive step for both employees and employers, in both seeking to prevent workplace bullying and giving victims clearer access to justice.

The Bill echoes other jurisdictions around the world that already have specific statutory rights addressing bullying at work, such as Australia, Canada, and the Netherlands.

The current absence of express legislation specifically defining and outlawing bullying obviously does not mean that employers have no legal duties to prevent such behaviour, nor does it mean there are no protections for victims of bullying and harassment in the workplace.

Constructive unfair dismissal

An employee might decide to resign on the back of being bullied and harassed at work or in response to their employer's failure to address it.

This could potentially allow them to bring a claim for constructive unfair dismissal.

Unlike an express dismissal (where the employer terminates the employment contract, with or without notice), a constructive dismissal occurs where the employee resigns in response to conduct from the employer that amounts to a repudiatory breach of contract.

It is well-established that bullying and harassment in the workplace can amount to a repudiatory breach of contract, depending on the circumstances.

For example, the safety of the victim could be at risk, breaching health and safety duties, or the implied duty of trust and confidence that exists between an employee and employer might be breached.

A successful unfair dismissal claim will result in a "basic award" of compensation (which is calculated in the same way as a statutory redundancy payment) and a "compensatory award" based on the individual's financial losses (which is capped at £105,707 or their gross annual salary, whichever is less).

An employee wishing to bring a constructive unfair dismissal claim must have two years of service.

Discrimination claims

More serious instances of bullying can give rise to discrimination claims, such as harassment claims.

Harassment is defined by the Equality Act 2010 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'.

The "protected characteristic" in question could be an individual's age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage or civil partnership, or pregnancy and maternity.

In addition to the possibility of bad press and reputational damage, successful discrimination claims give the employment tribunal the power to award uncapped compensation, depending on what is just and equitable in the circumstances, unlike unfair dismissal claims, which can include non-financial losses for injury to feelings and personal injury, as well as financial losses.

Regardless of whether the Bullying and Respect at Work Bill becomes law, it is important that employers do what they can to create a culture of respect in the workplace.

By observing their legal duties towards employees, they can not only mitigate against legal claims but boost employee morale, productivity and retention.

We have set out some top tips below that may help reduce instances of bullying in the workplace:

• Clearly outline, communicate, and consistently enforce up-to-date and effective anti-bullying and harassment policies so that clear expectations of employee behaviour are set out and a message of zero-tolerance towards bullying and harassment is communicated.
• Take all complaints seriously and conduct proper and timely investigations. Investigations must be objective and independent, taking into consideration all facts and circumstances before making a decision. 
• Ensure employees have multiple channels to communicate any problems they're having. They should have a way to report issues other than to their immediate supervisor.
• Consider allowing anonymous reporting of issues to allow third parties or those who are reluctant to come forward to be more comfortable reporting problems.
• Train managers and supervisors to recognise bullying behaviours and intervene. 
• Give training to employees around workplace conduct rules.
• Ensure that the behaviour of senior managers sets the correct professional tone.
• Implement and follow a progressive disciplinary process to handle any bullying.