CHAPTER ONE – THE LEGAL FRAMEWORK FOR BULLYING CLAIMS
In this chapter we will look at the following:
- The definition of bullying.
- The source of the legal rights available to an employee or worker who has been bullied in his or her workplace.
- The ways those legal rights can be enforced.
Sources of definition of what amounts to Bullying
When we look for definition in law of prescribed conduct there are only a limited number of places to look. The sources are limited and well established. The sources are as follows:
- Acts of Parliament or secondary legislation are a primary source.
- Caselaw or Codes of Practice issued by ACAS are a secondary source.
- The third place to look are those organisations with authority in a particular subject or area. Typically reference can be made to academia, academic papers, or research undertaken by those non-departmental public bodies exercising a statutory function such as the Equality and Human Rights Commission or the Health and Safety Executive. Such sources can be and are quoted in legal judgments.
Primary sources: Acts of Parliament or Statutory Instruments or Regulations.
Law in the workplace used to be solely governed by the common law of Master and Servant. Leaving aside the gendered terminology, the term servant implies a subservient and unequal position. Politics has played a large part in moving the regulatory landscape on from the rather Upstairs, Downstairs view that if you employed or engaged someone they were your servant. Parliament has elected Members of Parliament with a background in the Trade Union movement. Labour, traditionally, has been on the side of the working person and the name of the party reflects the side it’s on in the labour or capital equation.
With Parliament increasingly reflecting the population as a whole rather than landed interests, the majority of the population go to work as opposed to own a business. Parliament has recognised the inequality of bargaining position and has regulated to try to make the playing field more level rather than tilted towards the employers, or capital.
The workplace has become more regulated from the start of the twentieth century onwards. There are laws in place governing many aspects of the working relationship. There are health and safety laws that try to ensure workplaces are safe and healthy for those working in them. No sector of the economy is immune from their reach. Health and safety laws have put rules in place for every type of working environment from working in confined spaces to control of hazardous substances from prescriptive laws on how asbestos should be managed and handled through to six pack regulations that require employers take basic health and safety measures. There is an Act of Parliament governing what the employer must pay as a minimum wage to employees and workers. There are regulations controlling working hours and holiday.
Many of these laws emanated from our membership of the European Union. Directives issued by the European Union have to be transposed into member states’ domestic laws within two years.
Many such directives have been issued and member states like the UK have complied with them by passing Acts of Parliament, statutory instruments or regulations. Examples of transposed directives include regulations on employees’ rights following a transfer of an undertaking, rules governing what consultation should take place when making 20 or more employees redundant to Acts of Parliament prohibiting many forms of discrimination in the workplace. Article 119 of the founding Treaty of Rome sets out that men and women should be paid equally and have equal pay terms in employment contracts if men and women are doing similar or like work in the same or associated employment.
Despite what feels like a deluge of regulation in the workplace in the last 30 years, there is no statutory definition of bullying. The European Union has not regulated against bullying in the workplace directly. The UK parliament has made no laws specifically defining and outlawing bullying in the workplace. Harassment on the other hand has been defined both at the level of EU directive and within the Equality Act 2010 and the Protection from Harassment Act 1997.
Bullying and harassment as terms are used interchangeably by employees and workers. Harassment is likely to amount to bullying but bullying won’t necessarily amount to harassment. Harassment is a sub-set of bullying.
There are statutory definitions of harassment – one contained in the Equality Act 2010 and the other contained in the Protection from Harassment Act 1997. There is a statutory definition of victimisation. Bullying has yet to be defined by statute. That is a surprising omission.
There are some acts that are unlawful in the workplace that are so broadly defined that bullying will fit within the definition. The Employment Rights Act 1996 prevents employees being dismissed or subjected to a detriment if the reason for being subjected to a detriment or dismissed is because the employee:
- Has made a protected disclosure under the Whistleblowing regime.
- Has made a disclosure about health and safety concerns.
- Has refused to work on a Sunday.
- Has exercised a right under Working Time Regulations.
- Is a Pension Scheme Trustee.
- Has made a disclosure about pension auto-enrolment.
- Is an Employee Representative.
- Has made a Flexible Working request.
- Has made a request as a young employee for study or training.
- Has or is about to exercise a right to family leave.
- Is a member of a Trade Union.
- Has applied for Trade Union recognition.
- Has queried whether being paid national minimum wage.
- Is a fixed term employee.
- Has acted as a companion at a disciplinary or grievance hearing.
- Has or is about to go on jury service.
- Is on a zero hours contract.
Caselaw has interpreted detriment to mean disadvantage in Ministry of Defence v Jeremiah [1979] IRLR 436. Clearly being bullied in the workplace is a disadvantage or detriment.
However, in order to make a claim under the detriment provisions there has to be a causal link between the detriment suffered, the bullying, and the protected act. That is sometimes difficult as bullies don’t need a reason to bully. They just bully as part of their management or supervisory style or as part of their character as individuals.
Secondary sources: case law, or Codes of Practice that can be taken into account by judicial decision makers
ACAS does not have a Code of Practice on Bullying. ACAS has published a guide for employers and employees on bullying. An Employment Tribunal can take account of a Code of Practice in determining its decision. An Employment Tribunal will also look at ACAS Guides if their attention is drawn to the material.
ACAS definition within “Bullying and Harassment at Work – A Guide for Employees” is as follows:
“Offensive, intimidating, malicious, or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”
The examples of bullying given in the guide include:
- Spreading malicious rumours.
- Copying in others on critical memos or emails.
- Insulting someone by word or behaviour.
- Ridiculing or demeaning someone.
- Exclusion or victimisation.
- Unfair treatment.
- Overbearing supervision or other misuse of power.
- Making threats about job security without foundation.
- Deliberately undermining a competent worker by overloading and constant criticism.
- Preventing individuals progressing by deliberately blocking opportunities for promotion or training.
The ACAS definition is a workable definition. The examples of bullying behaviour are useful, however it may have been better if the word “deliberately” had not been used at example 2.1.9. A manager could leave a direct report feeling bullied by “overloading and constant criticism” even if the manager’s actions were unintentional rather than deliberate. That’s bullying behaviour, albeit unintentional. Intent in the law on harassment goes to the gravity of the unlawful act not whether the unlawful act has happened.
So the secondary sources give some definition to what behaviour amounts to bullying but suggests that bullying needs to be intentional to fit within the definition. Some bullying behaviour may not be intentional but may leave the recipient feeling bullied.
The ACAS Code is specifically referred to in the case of alleged ministerial bullying below.
Case law on Bullying
The second source of definition for bullying is caselaw. The legal system in the UK is described as a common law system. The common law develops as circumstances and societal mores change. It is no surprise therefore that in a common law system much of the guidance on what behaviour should be found as bullying comes from case law.
There have been reported cases on bullying. The cases have not given a definition of bullying but have given some examples of what sorts of behaviour amounts to bullying conduct.
The best-known case is Horkulak v Cantor Fitzgerald [2004] IRLR 942. In that case the employer’s Managing Director, a Mr Amaitis, was found to have subjected the Claimant to bullying behaviour. The findings were as follows:
“In my judgment the contract broke down and the position of the claimant became intolerable because Mr Amaitis took every opportunity to vent his disapproval of the claimant, to the claimant and sometimes in the presence of others … Far from having any discussions and giving advice he uttered intemperate, summary views in foul and abusive language. His solution seems to have been to frighten the claimant into performing according to the standards he required and to make it plain that any contrary view which questioned his authority will not be tolerated.”
Case law provides thin gruel for those looking for a definition of bullying. Examples of behaviour that amounts to bullying are given but not a wider generic definition.
In the case of Spadijier v Montenegro, Article 8 of the Human Rights Act was engaged. Article 8 gives everyone the right to a private life. In this case a prison officer who reported her colleagues for indecent conduct suffered in retaliation the form of being spat at, verbally abused, had her windscreen broken. She was required to make her colleagues coffee.
The ECHR said there was a positive obligation on the State employer to protect staff from bullying retaliation. In this case the Claimant the right to private life breached. The Human Rights Act is only directly enforced against state employers.
In the case of R v Prime Minister and Minister for the Civil Service [2021] EWHC 3279, the court found that inappropriate bullying by a Minister against a senior civil servant, couldn’t breach the ministerial code in certain circumstances. In interpreting the code the court said that intention to bully was not a required component. The court said that bullying must be interpreted objectively. Bullying is bullying if it’s offensive, intimidating, malicious or insulting behaviour and that behaviour may fall within that definition even if the perpetrator was unaware it had that effect.
The second hub of bullying was “abuse or misuse of power in ways that undermine, humiliate, denigrate or warning the recipient.
In the case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin) the High Court found that a Barrister’s tweet would amount to professional misconduct. Given the toxicity of certain sections in social media. This is a clear warning for professionals to conduct themselves appropriately.
Other sources such as academic papers, and the Health and Safety Executive.
The Health and Safety Executive have a paper called “Bullying a review of the literature”. In the paper, as its title suggests, the researchers have reviewed the academic literature.
The definition of bullying that the HSE finds has most academic consensus is as follows:
“Bullying at work means harassing, offending, socially excluding someone or negatively affecting someone’s work tasks. In order for the label bullying (or mobbing) to be applied to a particular activity, interaction or process, it has to occur repeatedly and regularly (e.g., weekly) and over a period of time (e.g. about six months). Bullying is an escalating process in the course of which the person confronted ends up in an inferior position and becomes the target of systematic negative social acts. A conflict cannot be called bullying if the incident is an isolated event or if two parties of approximately equal ‘strength’ are in conflict”
However there is not agreement amongst academics on that definition and the following issues are subject to debate:
- Does the bullying have to be intentional?
- Does there have to be repetition or is once enough?
- Can bullying become institutional rather than individual?
- Does there have to be an inequality of power or position?
A review of the all the sources shows that there is no consensus amongst the academics on a definition of bullying, no statutory definition by the law makers and very little definition given by the Judges in cases that come before them. The Courts have left it to the good sense of the Judge to find bullying where the facts and context permit without being too prescriptive about a definition.
What legal rights does an employee have not to be bullied in the workplace?
The ACAS guide makes clear that unlike harassment which is actionable as a freestanding legal claim under discrete sections of legislation, an employee cannot make a freestanding complaint of bullying to either an Employment Tribunal or the High Court. Bullying is actionable as a legal claim, but the legal claim usually comes under another heading. The route into a legal claim of bullying is signposted as a different sort of claim.
So in order to bring a legal claim where bullying is the main allegation how is the claim framed legally? What legal rights are being enforced?
Not to be bullied in the workplace is a negative right. The positive right is to be treated with respect.
Employee’s legal rights can usually be found in three places:
- The contract of employment (including implied terms).
- The Employer’s legal responsibilities owed to employees including the duty of care.
- The statutory rights Parliament has given to employees.
For the sake of ease we will look at these sources of rights and duties separately. In practice, however, the distinctions overlap.
An employer’s legal responsibility to provide a safe place of work can become an implied contractual right for an employee. Similarly an employee’s statutory rights can become, in certain circumstances, implied into the contract.
The distinction is perhaps more useful when we look at the methods and mechanisms available to an employee for enforcing their contractual or statutory rights or alleging an employer has breached a legal responsibility which it owes the employee.
Bullying at work – the contractual position
We will look at contractual rights first. When looking at rights under the contract, we need to differentiate between the right itself and the method of enforcement. More often than not the…