The issue of bullying at work has been brought under the spotlight recently. The Home Secretary, Priti Patel, has been found to have acted in breach of the Ministerial Code which provides that:
- There must be no bullying and no harassment.
- Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.
A report into Ms Patel’s conduct has been prepared by Sir Alex Allan and his conclusions include:
My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals. To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally.
If we wind the clock back a bit, in April 2020, the ex-Home Office chief, Sir Philip Rutnam, lodged an employment tribunal claim alleging that he had been constructively dismissed. He had resigned in February 2020 and has made bullying at work claims against Priti Patel.
Bullying at work – Employer’s responsibilities
I cannot comment on Priti Patel’s management style and whether it has amounted to bullying or not. However, the news reports have brought bullying into focus and I thought it would be a good time to comment on:
- the issue of bullying at work;
- how a business should deal with alleged bullying by someone who is very senior; and
- the question of unintentional bullying.
Bullying and harassment
When employees refer to bullying, they will often also refer to harassment. You might hear an employee allege that he or she has been “bullied and harassed” at work. It is important to consider the issues separately and in this regard:
- Harassment is defined by law and addressed in a number of statutes.
- Bullying is not so defined.
In the workplace, a reference to harassment will generally be to the Equality Act 2010 which defines harassment as unwanted conduct which has the purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. To be unlawful, however, the unwanted conduct has to be related to one of the protected characteristics under the Equality Act 2010 (such as age, race, sex, disability etc).
As I say, bullying is not defined by law and it can be harder to pin down what it is and whether it has taken place. There is no freestanding claim of being bullied at work and there is no specific piece of legislation which addresses bullying. However, despite this, most of us will recognise bullying when we see it. Acas makes reference to bullying and says that bullying is:
Behaviour from a person or group that’s unwanted and makes you feel uncomfortable, including feeling:
- frightened (intimidated);
- less respected or put down (degraded);
- you’re made fun of and it makes you feel uncomfortable (humiliated); or
- upset (insulted or offended).
It can be seen that the Acas definition of bullying has some similarity to the Equality Act definition of harassment. The behaviour will overlap but it must be remembered that harassment is only unlawful (under the Equality Act) if it relates to one of the protected characteristics. A manager who treats everybody badly will not act in breach of the Equality Act. The action of the manager will not be because of one of the protected characteristics but will instead be because of a reason related to the manager such as:
- an uncontrollable temper;
- lack of respect for the employees;
- a feeling that he or she is above the law.
Bullying at work is toxic and must be addressed by an employer hoping to run an efficient and happy workplace. If it is allowed to continue it will destroy morale and it will lead to employees underperforming, breaking-down and/or leaving. An employee who leaves his or her employment due to being bullied may well bring a claim of constructive dismissal, as is the case with Philip Rutnam.
Constructive dismissal happens where:
- the employer acts in fundamental breach of contract;
- the employee resigns in response to that breach of contract;
- the employee does not delay too long before resigning.
In constructive dismissal claims arising out of bullying, the employee will contend that the employer has acted in breach of the implied term of mutual trust and confidence, usually by allowing the bullying to take place or by not taking action to stop the bullying or the person alleged to be the bully. An employer must not act in a way likely or calculated to destroy a mutual trust and confidence. An employer who condones bullying will most likely be in breach of the implied term.
Constructive dismissal is serious for an employer because the employee may bring claims of wrongful and or unfair dismissal. However, employment tribunal claims can be dealt with and the employer has the choice to defend or settle the claim. The outcome is likely to be monetary. A bullying culture, however, is harder to deal with, but it is extremely important that an employer does so.
Is intention relevant?
The report in relation to Priti Patel said that her behaviour had been in breach of the Ministerial Code, even if unintentionally. This raises the question as to whether a person can bully or harass another unintentionally?
When we look at harassment, there is no doubt that this can happen unintentionally. I said above that harassment happens where an employee (the harasser) creates an intimidating, hostile, degrading, humiliating or offensive environment for another. The effect of the conduct is assessed from a person’s subjective viewpoint and it does not matter whether the harasser intended to create the intimidating, hostile etc environment for the employee. You will often see this in the cases where employees defend their position by saying that it was only “banter”. Managers need to be aware that, even if many employees find their jokes or behaviour funny, others might not and might find that it creates an intimidating environment.
Unintentional harassment happens therefore and the same must be true in relation to bullying. A person might not realise that his or her behaviour is adversely affecting another employee in a way which could be considered as bullying.
An employer might deal with unintentional bullying in a different way to overt or intentional bullying. The outcome might, for example, be more of a training issue and educating the manager so that similar behaviour does not happen in the future. All managers (and indeed all employees) need to be aware that they might unintentionally bully or harass another person.
Dealing with bullying therefore requires leadership. I have had cases where employers have been reluctant to call-out a bully or deal with bullying employees because of the identity of the person involved. The person might be very senior or considered of high value to the employer. An employer might be concerned about disciplining someone very senior or someone considered of high value due to the potential fallout. However, the cost to the business of not dealing with this will ultimately be far higher.
Boris Johnson has backed Priti Patel and we are told that he has ignored the findings of the report and has stated simply that she did not break the code. We do not know what discussions have taken place behind the scenes. However, it may be one of those cases where the alleged bully is so senior that the employer is willing to put up with her shortcomings and ignore findings against her. If Ms Patel is actually a bullying manager as is alleged, Boris Johnson is not in my view acting appropriately or sensibly. The damage this will cause will be immeasurable and employees will feel very unsupported.
If Ms Patel has acted inappropriately then it would be far better to take action now. This does not necessarily mean that she has to resign or be dismissed. Action could include:
- A clear and precise warning that any future transgressions will not be tolerated;
- Ms Patel, herself, accepting her shortcomings and show a willingness to address them and improve.
If genuinely the bullying actions were unintentional, there is greater strength in the effect being acknowledged and there being a commitment to improve management style and/or the working environment. Boris Johnson wasn’t faced with a binary decision of back or sack. He could have acknowledged that behaviours must be improved and committed to making the necessary improvements.
No manager is perfect and there is always room for improvement. There is greater strength in people acknowledging and accepting their shortcomings and being willing to learn and improve, compared to pretending that everything is fine.
As I say above, bullying in the workplace is toxic. It can happen anywhere and this includes good work places. However, if you allow it to continue unaddressed then you will face serious consequences and the damage will be far greater than simply an employment tribunal claim.
As a first step, I recommend that all employers train their workforce including all managers and employees being managed. This must also include the very senior managers/directors. Directors must not excuse themselves from the training due to being “too busy”. In conjunction with the training, employers should create a written policy which will set the tone for the organisation. This must make it clear in no uncertain terms that bullying by any person will not be tolerated.
This will address the front end of setting a culture which will hopefully lessen the chance of bullying and harassment. At the other end, if allegations of bullying or harassment are made then an employer must deal with them swiftly, fairly and without favour to any employee or level of employee.
Time will tell in the case of Priti Patel and no doubt we will learn more in due course. The constructive dismissal claim will be heard in a public forum, if it is ever heard. One would expect that, if there is a risk of the claim succeeding, the government lawyers will be trying their utmost to settle the case before any witness evidence is heard.
If you are worried about any potential bullying in the workplace or harassment issues please contact a member of the Employment team.