Partner Charlie Thompson gives an overview of how to approach a bullying complaint, from the perspectives of the employer, complainant, and the alleged bully.

The term “bullying” is not recognised in employment law. There is no standalone claim that can be brought against an employer or a colleague in the Employment Tribunal or the High Court for bullying. However, while there is no express prohibition making bullying illegal, there are numerous legal protections against bullying.

• There is protection under the Equality Act 2010 (if the treatment relates to a “protected characteristic” such as age, sex, gender reassignment, race, pregnancy/maternity, disability, sexual orientation, marriage/civil partnership, religion/belief). It is not just employees who are protected; other categories of individual such as LLP members also have protection. The employer may be vicariously liable for the conduct of the bully, and the bully may also be personally liable.
• Similarly, workers have protection from victimisation at work if they take steps to enforce their rights under the Equality Act 2010, or their aggressor believes that they might.
• If there is no connection between the bullying and a protected characteristic, there may be protection under the Employment Rights Act 1996 if the treatment is because the individual has raised a qualifying whistleblowing concern. Any worker who raises an eligible concern has enhanced protection from detriment and dismissal. As with claims under the Equality Act, an employer may be vicariously liable for the conduct of the bully, and the bully may also be personally liable.
• Bullying, and an employer’s failure to address it, may constitute a breach of the employment contract, including the implied term of mutual trust and confidence. In some cases, there may be potential claims for constructive unfair dismissal.

While disputes on the above are decided in the Employment Tribunal, other forms of protection may also be found in the High Court:

• One route is through the Protection from Harassment Act 1997. While more conventionally used in the context of stalkers and threats of violence, the Act can be used to make complaints against a bully and his/her employer. The Protection from Harassment Act carries both civil and criminal penalties.
• All employers owe a duty to take reasonable care for the health and safety of employees in the workplace. Where the bullying has resulted in psychiatric injury to an employee, the employer may be vicariously liable.

Complainant

Ultimately, an individual may wish to enforce their rights by suing their employer (and potentially also their bully). There are, however, usually various opportunities to resolve the matter before that.

Once informal channels are exhausted, the next port of call is typically the employer’s grievance procedure. This might lead to the desired outcome, whether that is an apology, redeployment, disciplinary proceedings against the bully or a confidential settlement.

Employees can often fear that raising a grievance is pointless because they expect the resulting investigation to be a whitewash, which either denies the allegations or fizzles out because of a perceived lack of evidence. They may also fear the stigma of being a complainant and the reprisals that may follow.

However, in many cases, a complaint will give an employee enhanced protection against detriment, victimisation and dismissal.

In addition, not raising a grievance can backfire. If the dispute escalates and a claim is issued, the employer may raise criticisms that no attempt was made to resolve the issue before suing.

Accordingly, care must be taken to decide whether or not to raise a grievance, when to raise it and what specifically to complain about. A grievance can, deployed correctly, help resolve issues in-house before matters escalate, positions entrench and costs mount. Even where an employer attempts to whitewash a complaint or otherwise “close ranks”, a carefully advanced grievance can help shed further light on the employer’s shortcomings and the scale of the problem.

Bullying complaints are likely to involve contradictory accounts from the people involved, and the employer must decide in a grievance which account (if any) is more credible. And if the matter proceeds to litigation, much will turn on what, in the court or tribunal’s view, “actually happened”. Evidence is pivotal, and few things are more persuasive than contemporaneous, objective documentary evidence. It is important, at an early stage, for a complainant to have evidence of the bullying or at least know where the evidence can be obtained lawfully.

Most complainants will not wish to litigate if there is an alternative way to resolve the dispute. However, there can be no guarantee that the employer will uphold the grievance. In that context, and bearing in mind that the seriousness with which an employer treats a complaint may be influenced by how determined the employee appears to assert their rights, it is prudent even for the conflict-averse complainant to be in “litigation mode” at an early stage. This involves identifying potential claims and how best to increase their prospects of success or how to avoid prejudicing them.

Employer

The employer must carefully balance its duties to itself, the complainant and the alleged bully. It must be keenly aware that any step will be closely scrutinised and may result in criticism from one of the other parties. It is not uncommon, for example, for the alleged bully to issue a counter-grievance if he/she considers that the employer is not handling the process fairly. Similarly, a decision not to uphold a grievance is likely to inflame tensions with the complainant.

There will rarely be allegations of bullying that do not require some form of quick investigation and resolution. Allowing a report to sit on a decision maker’s desk for weeks on end is only likely to exacerbate problems for the employer. Bear in mind that regardless of the outcome of the grievance, it is highly unlikely that its conclusion recommends no further action whatsoever. A slow initial response might not only delay the resolution of the grievance but also jeopardise the employer’s ability to resolve it.

The complainant and the alleged bully may be sceptical of the employer’s ability to investigate the matter objectively and impartially. Accordingly, it will be prudent to take steps to gain the parties’ trust in the process. This is typically best achieved by ensuring that no party can credibly criticise the investigation process.

The employer’s grievance procedure and anti-bullying policies are a useful starting point, as is the Acas code, but these documents tend not to anticipate all the complexities and nuances of a specific complaint. Therefore, before rushing into an investigation, the employer should first carefully consider matters such as the scope of the investigation, who is best placed to undertake it, how evidence will be gathered, how witnesses will be interviewed, how confidentiality will be preserved, and whether the investigation will be undertaken under legal privilege. In addition, the employer should consider the interaction between this investigation and other processes, whether they are internal (such as other grievance, disciplinary or performance management processes) or external (such as a potential regulatory or police investigation).

In the meantime, thought needs also to be given to the complainant and the alleged bully. What will happen to each of them while the investigation is ongoing? Suspension of the alleged bully is a common step but can be explosive and make it impossible for the individual to return even if the investigation concludes that there is no case to answer. Even where the employer has a contractual right to suspend an employee, that right must not be exercised as a knee-jerk reaction.

Great care must be taken in relation to each party’s mental health during the process. The employer must ensure that it is taking steps to protect the health and safety of its employees. This will typically involve an increased level of monitoring while being careful not to be overbearing or intrusive, whilst being mindful of each party’s rights in relation to confidentiality and data protection.

Once the investigation is completed, and a grievance hearing has taken place, the employer will need to communicate its decision and recommended next steps, which will be carefully scrutinised and may become a key document in future litigation.

The alleged bully

The alleged bully, while typically portrayed as the powerful and abusive antagonist in the grievance, can often be the party with the least agency in these situations. They can also often have the most to lose if disciplinary proceedings are initiated and result in a finding of gross misconduct. It could mark the end of one’s career.

Employees with more than two years of service have protection from unfair dismissal, which includes a right to a fair process. Compensation for claims of this nature, however, is typically capped, and so care needs to be taken to maximise one’s position by identifying other factual, legal and commercial protections. In addition, steps should be taken to ensure that the alleged bully’s position is not prejudiced by the way in which the investigation is completed.

People who are accused of bullying can often inadvertently weaken their own positions by being a rabbit-in-the-headlights, too aggressive or falling into other traps. For example, while employers should conduct investigations impartially, they can often slip into trying to “crack the case” against the alleged bully. Individuals can unwittingly incriminate themselves and hasten their own exit, by being too meek.

On the other hand, while it is deeply upsetting to be accused of bullying, an excessively robust response to the allegations can sometimes lend them further credibility. Where the bullying allegations or the people making them lack credibility, or the accused considers that the grievance itself is an act of bullying against them, then these points can and should be made, but with great care.

Similarly, positive character references from colleagues need to be deployed carefully. Rather than showing that the accused not a bully, they may instead show that colleagues are afraid to speak out against them. Another potential trap is the defence of “unintentional bullying”. In a conventional workplace setting, this is extremely unlikely to be a successful ground of defence and is far more likely to give the impression of someone who neither knows nor cares of the impact of their behaviour on others.

Importantly, while bullying is serious, an adverse finding in a grievance does not automatically lead to dismissal. If a grievance is upheld, employers should usually ensure that there is a separate disciplinary process in which the alleged bully is allowed to respond to the allegations. The employer should consider not just incriminating evidence, but also exculpatory evidence and mitigating factors, such as long service and a clean disciplinary record.

FAQs

What is the definition of bullying in the workplace?

Bullying can be difficult to define, as there is no specific legal definition of “bullying”. However, bullying typically involves a misuse of power which can make someone feel vulnerable, upset, humiliated, undermined or threatened.

Bullying can take various forms. Not only can it be physical or verbal, it can manifest itself through ignoring or excluding a colleague. It can happen both inside and outside the workplace and inside and outside of normal working hours.

Regardless of its form, bullying typically involves the following two elements:

• An abuse of power, and
• That abuse having a negative impact on someone else.

What is not considered workplace bullying?

In the workplace, legitimate, constructive and appropriate criticism of performance or conduct will not normally amount to bullying. Similarly, reasonable instructions to a worker in the course of employment will not normally amount to bullying.

There has recently been extensive debate about whether intent is important and whether there is such a thing as “unintentional bullying”. In practice, the answer is yes; many bullies do not realise the impact of their behaviour. However, intent is unlikely to have a bearing on whether or not the alleged bullying happened. Instead, it may be relevant to an employer’s consideration of how to deal with the bully, for example, in any potential disciplinary proceedings against the bully.

Is there a law against bullying the workplace?

The short answer is no, there is no express legal prohibition of bullying. However, there are several potential claims that an individual can bring against their employer (or their bully) – see the main body of this article.

How to investigate workplace bullying

An employer may already have an internal policy specifically aimed at investigating bullying complaints. If not, it may wish to use its grievance procedure.

However, care must be taken not to follow an internal policy slavishly. Bullying complaints can be extremely complex, and an employer has the difficult balancing act of investigating fairly while protecting the interests of the complainant, the alleged bully and itself. A bullying complaint may lead to litigation, and in turn, a court may order for all relevant documents to be disclosed. It is prudent to keep this in mind from the outset of any investigation.

See the main article for an overview of some of the factors an employer should consider.

How to prove bullying

Whether or not bullying happened primarily is a factual rather than a legal question. In practice, this means that the relevant party (whether that is the employer, a tribunal or a court) must first decide what happened. This is often referred to as “making findings of fact”.

Some facts will be uncontentious, for example, whether an employee got a poor appraisal or whether a line manager sent a certain email or message which upset the employee.

However, there will also be various facts and issues which will not be certain, and which the various parties might contest. This may include a dispute over what was said in a verbal conversation or “why” a party said or did a certain thing. In these situations, a decision should be made on a balance of probabilities.

In practice, this means considering the differing accounts and available evidence and then concluding which is the most plausible. This is likely to include the consideration of contemporaneous documents and witness evidence. In some cases, it might not be possible to make any finding of fact.

Invariably, the complainant will wish to prove the allegations, and the alleged bully will wish to disprove them. An employer must take care to remain objective, both in a grievance or disciplinary setting, to ensure that it is not biased towards one side or the other.

From a complainant’s perspective, the most persuasive evidence is usually contemporaneous documents, such as emails or messages. Where no such documents exist, it may be less easy to prove bullying, for example, in relation to verbal interactions without corroborating witness evidence.

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