Employees are protected by law from bullying. Yet bullying in the workplace is most commonly cited as coming from those in a position of seniority such as managers. What should an employer do if a manager is being accused of bullying at work?
What do we mean by bullying at work?
There is no legal definition of bullying, but the Advisory, Conciliation and Arbitration Service (ACAS) refers to bullying as “offensive, intimidating, malicious or insulting behaviour, involving an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient”.
Examples of bullying at work
An employer can be held liable for an employee bullying or discriminating against another person if it relates to one of the nine protected characteristics: race, religion or belief, pregnancy/maternity, sex, marital status, disability, sexual orientation, gender or gender reassignment, or age.
Bullying at work also includes such behaviours as abuse, verbal or physical abuse, humiliating or undermining someone’s confidence. It can be face-to-face, over the phone, in writing (including email) or by social media. It includes (but is not limited to):
- Sexual comments or comments about someone’s sexual orientation
- Racial abuse/comments
- Religious abuse/comments
- Being blamed for problems caused by others
- Being humiliated in front of colleagues
- Regularly threatened with dismissal
- Unfairly passed over for promotion or training opportunities
- Setting someone up for failure by giving them too much to do
Examples could include:
The manager has allegedly bullied an employee but the company’s grievance procedure states that they should be the first port of call.
Any complaint should be made by the employee in writing to their line manager and request that it be passed onto another manager to investigate. If that is not possible, the complaint should be made to the boss’s manager, or HR department.
The alleged bully is a sole trader or the firm’s managing director.
The grievance procedure should be followed as set out in the staff handbook (if there is one). It may help later if the employee takes legal action against you.
The alleged bully has been violent.
If there is any risk of significant harm to an employee within the business from pursuing a complaint, you can deviate from the normal grievance procedure. However, it is advisable to fully document the process followed and reasons behind it.
Dealing with accusations of bullying
Employers have a legal duty to make every effort to tackle bullying at work, including harassment and intimidation, regardless of the perpetrator’s position within the organisation. This could include supervisors, managers, directors or fellow colleagues.
Having received a grievance (ie a formal complaint) from an employee alleging they are the victim of bullying at the hands of a manager, it is essential that you investigate the allegation promptly, fairly and decisively. The longer issues are left, the more difficult it can become to resolve the matter.
This will involve speaking to (ie interviewing) the parties separately to establish their version of events and to take any evidence they can provide to support their position.
An employer has a duty of care to support both victims and the alleged bully equally and impartially, at the time of the complaint and during the investigation.
The accused employee must be given copies of any statements and/or other evidence and given sufficient time before any investigatory/fact-finding meeting to discuss their contents with a union rep (if there is one), or a colleague, and to make any notes.
The alleged bully should also be informed they may face disciplinary action under the organisation’s disciplinary policy if they are found to be guilty. Depending on the facts of the case, this may include a finding of gross misconduct.
It may be appropriate to offer support to the accused employee and if your business offers a counselling service consider accessing these services.
In some circumstances, depending on the nature of the allegations and the working relationship of the parties, it may be appropriate to consider suspension while the investigation is ongoing. If this course of action is taken, it should be explained to the employee that this is in the interests of ensuring a fair procedure and that it is not a punitive or disciplinary measure. The employee should also receive their usual pay during any period of suspension.
Any decision on the allegations should be reserved until all evidence has been considered and the investigation has concluded.
Dealing with malicious complaints
Sometimes, false allegations of bullying at work are made. This can have an enormous impact on the mental wellbeing of the accused person and cause profound damage to their reputation. It is important to recognise the serious impact and implications a false accusation of bullying at work can have on any future employment prospects and reputation.
It can be difficult to identify vexatious claims of bullying but by practising fairness and parity consistently whilst handling the complaint and conducting an investigation, and carefully following company procedures, you can minimise the chance of being accused of acting unfairly.
It is generally more straight forward and less resource-intensive to put in place robust procedures and take preventative steps to address bullying at work than it is to constantly defend a stream of cases in an employment tribunal.
Where a manager is accused of bullying
The reality of the modern workplace is that sometimes, managers may find themselves accused of bullying by a disgruntled team member. Often, the complaint may be a result of long-standing issues with the complaining employee, such as underperformance, or of organisational change such as a restructure.
Where the manager does not call out challenging behaviours at the time, perhaps due to concerns that they will be regarded as ineffective at managing, they may find themselves as the accused.
Managers should be supported and trained to address minor issues with team members and to identify the potential for escalation early, to allow the organisation to take a fair and effective approach in resolving the matter before any formal complaints are made.
Bullying is a systematic diminishment and humiliation of a person within the workplace on a regular basis and over an extended period. Care should be taken not to label a manager a bully who has not been trained adequately or has a deficit in their skills and their inelegant attempts to motivate and engage staff appropriately.
That said, if an employer fails to take acceptable measures to protect a worker who is being bullied, and an employee resigns as a result, it could give rise to a claim for constructive dismissal.
Minimising the risk of bullying complaints
Organisations that fail to distinguish clearly between behaviours that are acceptable, and those that will not be tolerated, such as ‘managing’ and ‘bullying’, can see unwanted behaviours pervade the organisation and its culture.
The Health & Safety Executive (HSE) recommends employers should:
- Create and execute a bullying and harassment policy
- Adopt a zero-tolerance bullying and harassment culture
- Be alert to factors unique to your organisation or industry that are associated with bullying and the steps you need to take to adequately address them
Where you are considering creating an anti-bullying and harassment procedure, the following should be considered as a minimum requirement:
- The drafting of a statement from senior management affirming the bullying and harassment policy
- Define what constitutes unacceptable behaviour within your organisation
- A statement outlining your businesses responsibilities with regard to eliminating bullying behaviour
- Set out a clear and unambiguous procedure as to how your employees can raise concerns about bullying
- Signposting sources for emotional support
- Set out the procedure that your business will follow once a complaint of bullying or harassment has been made
- Decide how, if you have found instances of bullying behaviour, are going to deal with the bully such as following a disciplinary process or rehabilitation support.
- It is good practice to review any policies and procedures put in place every twelve months or so. Always try your best to keep them up to date with current law and relevant to social media issues
Information such as anti-bully policies and procedures are usually reproduced in the staff handbook or placed on the company intranet. Employees who are experiencing bullying at work are usually signposted to the company’s grievance procedure in order to make their initial complaint against a manager or fellow employee.
If your company does not have any policies or procedures on bullying at work, harassment or discrimination you still have a legal duty of care to protect your employees while they are at work. You will need to treat any allegations with the utmost care and seriousness and deal with all parties fairly. Failure to do so may result in an employment tribunal claim.
Bullying and constructive dismissal
When an employee resigns because of unresolved bullying at work, harassment or discrimination, they may be able to make a claim for constructive dismissal. The employee must have worked at the company for two years or more and be considered an ‘employee’ and must also claim within three months of the date they resigned less one day.
To minimise the risk of a grievance ending in an employee resigning and claiming constructive dismissal, employers should take steps to ensure a fair and lawful investigation and grievance process has been followed, in line with the company’s bullying, harassment, and discrimination procedures. Keeping contemporaneous notes, retaining documents and keeping the employee updated on the progress of their complaint can also help to reduce the potential for tribunal claims.
There is an additional requirement for the former employee to inform ACAS where they will be offered the option of entering into early conciliation mediation. This service is free and gives both parties the chance of brokering an agreement without resorting to an employment tribunal.
DavidsonMorris’ employment law experts work with employers to support with resolving workforce management issues, including allegations relating to bullying, workplace investigations and disciplinaries. Working closely with our team of HR specialists, we provide a holistic approach to managing difficult circumstances that present considerable legal risk, such as where senior managers are involved. For help and advice on your legal options as an employer, speak to us.
Last updated: 30 September 2020