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Workplace bullying: what protection does the law offer?

In light of the huge debate around the Priti Patel bullying allegations, Aman Thakar explains what employment law says about the issue.

Office bullying
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Aman is a solicitor in the employment and discrimination department at Leigh Day. 
The long-awaited inquiry into the Home Secretary Priti Patel’s conduct at the Home Office has given its report and concluded that her approach had amounted to bullying.. A useful summary is set out here.
 
Following the publication of the conclusion to the report, Patel gave the following apology:
 
“I am sorry that my behaviour in the past has upset people. It has never been my intention to cause upset to anyone.”
 
Patel’s position here is that she did not intend to bully her staff. However, intention is not the correct legal test. Whilst bullying is not specifically defined under law, whether the person instigating the bullying behaviour intended it to be considered bullying or not is not relevant. Rather, looking at ACAS, bullying is defined as:
 
Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.
 
Note that intention is not a relevant consideration here. What would be much more relevant is whether an objective reasonable bystander would consider behaviour to be tantamount to the ACAS definition as described above.
 
An independent report being carried out into such behaviour would expect to judge the behaviour against an impartial and objective standard. While we don’t have all the facts in the Patel case, the report found Patel’s behaviour to be as such that it can be “described as bullying”.
 
Whilst Patel’s own apology may have used lack of intention as a shield to excuse her own behaviour, such a shield is not a relevant one when considering workplace bullying.
 
These latest events in Westminster highlight once again that workplace bullying is not treated with the sufficient seriousness that is needed.  There is no clear protection against bullying, save where it may fall within another type of legal claim. 
 
For example, if the bullying behaviours are related to a protected characteristic such as race, sex, age or disability, it may amount to unlawful harassment under the Equality Act 2010. However, unless such behaviour can be linked to a protected characteristic, a claim for harassment under the Equality Act cannot be brought. Section 26 of the Equality Act specifically states that such unwanted conduct has to relate to a protected characteristic.
 
More commonly, bullying behaviour may lead to an individual feeling that there has been a fundamental breach of an employer’s duty of trust and confidence leading to a resignation by the employee.  In such circumstance, the employee may have a claim for constructive unfair dismissal.
 
The legal test to establish that there has been a constructive dismissal states that a party to an employment contract must not, “without reasonable and proper cause conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”  (Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23.) This again highlights that the intention of the perpetrator is not an essential element to establish a claim.  
 
Workplace bullying is a serious issue, and one that requires clarification to ensure that employees are protected. 
 
Currently the legal protections in place are sorely lacking, giving employees very little protection in the event that bullying behaviour cannot be directly linked to either a protected characteristic or a subsequent constructive dismissal.
 
These latest news stories, however, betray an attitude that employees who are subjected to unacceptable behaviours are somehow to blame themselves. 
 
A worrying example for those who are in the highest echelons of power to set, and unfortunately an attitude that will be all too pervasive unless stronger legal protection is created. Given the perpetrators of these latest stories are the very government itself however, it remains to be seen whether such protections will emerge.

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