The TUC reports that 29% of workers will experience bullying at work and one in 10 have experienced it within the past six months. Despite this, there is currently no legal definition of bullying and employees cannot bring freestanding claims for bullying in the Employment Tribunal.
The impact? With no legal redress, 53% of those who are bullied never report it (according to the CIPD) and instead victims often opt to resign. For UK businesses, Acas estimates that conflicts at work cost £28bn each year.
The Bullying and Respect at Work Bill was presented in the House of Commons last week. Its purpose is to:
- introduce a statutory definition of bullying at work;
- enable the Employment Tribunal to consider claims of workplace bullying;
- provide for a Respect at Work Code to set minimum standards for positive and respectful work environments; and
- give powers to the Equalities and Human Rights Commission to investigate workplaces where there is evidence of a culture, or multiple incidents of bullying and to take enforcement action.
What is the current position?
Victims of bullying can potentially claim constructive unfair dismissal if they are forced to leave their job because of their employer's actions, or if their employer fails to deal with a complaint or to protect them from bullying. However, this avenue is not open to everyone: claimants must have been employed for a minimum of two years and have resigned because of their employer's actions (which must amount to a repudiatory breach of either an express or implied duty).
Where the bullying is linked to a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation), the Equality Act 2006 may also provide a route to a remedy, but for those whose circumstances don't qualify there is no legal protection.
While victims of harassment can seek civil injunctions and/or damages under The Protection from Harassment Act 1997 in respect of behaviour which causes distress, these are not proceedings which fall under the jurisdiction of the Employment Tribunals and can be costly to bring (and have associated adverse costs risks).
What impact would the Bill have?
If enacted, the Bill will for the first time provide a legal definition of bullying and give victims of bullying an alternative route under The Employment Rights Act 1996 to seek remedy.
The definition is expected to include unwanted behaviour from a person or group of people that is objectively offensive, intimidating, malicious or insulting. The test would be subjective (considering the impact of the behaviour on the employee), fettered by an objective test. The Bill also provides that a dismissal arising from bullying would be automatically unfair, requiring the employer to demonstrate that their failure to protect the employee was not the reason for their resignation.
As drafted, an employee would have six months to bring a claim (rather than the usual three months) and the remedies would (similar to discrimination claims) include a compensatory award for injury to feelings.
The Respect at Work Code would set minimum standards for work environments and look to assist employers in managing perpetrators of bullying through procedures.
The Bill is a welcome step in tackling workplace bullying, providing clarity for employers and redress for workers. Whilst the Bill is unlikely to make further progress in its current form, we anticipate that the UK will follow other jurisdictions and introduce legislation to tackle it. In advance of this, employers are advised to consider and address any cultural issues and consider the mechanisms in place for reporting and investigating such complaints.