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Bullying - Back on the Agenda - or Never Off?

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In the wake of recent high-profile allegations of bullying against Gordon Brown, the topic of bullying at work is once again back in the news - and proving itself to be as difficult as ever to deal with and define.

In the wake of recent high-profile allegations of bullying against Gordon Brown, the topic of bullying at work is once again back in the news - and proving itself to be as difficult as ever to deal with and define.

Whilst UK employment law recognises that those who are the victims of bullying may be able to bring claims, in practice, it is very difficult to obtain a worthwhile remedy and of course most victims simply want the bullying to stop.

Research from the Chartered Institute of Personnel and Development shows that whilst 83% of organisations (90% in the public sector) have anti-bullying policies, bullying is still affecting a significant number of ordinary working people, with an annual cost to the economy and employers that has been put as high as two billion pounds.

The cost to individuals is rather difficult to quantify and one might say even higher, with some employees suffering lasting, psychological and physical damage.

Of course the culture in some workplaces can itself create institutional bullying through autocratic management styles, work overload, a blame culture and tolerating aggressive behaviour because it is believed to produce better productivity or financial results.

There is of course a fine line between reasonable management control and bullying and some managers believe that they are being firm whilst other managers worry about tackling under-performers and then being accused of bullying.

Victims of sustained periods of bullying are most likely to end up simply leaving their job and pursuing careers elsewhere. Such employees may seek to bring claims of constructive dismissal in the employment tribunal.

Therefore, employers are at risk of financial penalties if they do not tackle allegations of bullying once they become aware or should be aware of a situation developing. Whilst employees can bring claims in the employment tribunal, there is, surprisingly, no free standing right to bring a claim of bullying unless this is alleged to take the form of discrimination on one of the prescribed grounds - currently:

  • sex (including marital status)
  • race
  • disability
  • religious belief
  • sexual orientation
  • transgender re-assignment
  • age

Therefore, if an employee believes he or she is being bullied but cannot show that it is linked to one of the above, they cannot bring a claim in the employment tribunal unless they have resigned and are claiming constructive dismissal.

For those victims who argue that the bullying is in the form of discrimination, claims can be brought not only against the employer but also against the alleged perpetrator. This can cause logistical headaches in the workplace especially where (as is often the case) the alleged victim has not left but continues to be employed alongside the alleged bully.

Further difficulties may arise if, having carried out an investigation, the employer concludes that there is no merit in the allegations and therefore no disciplinary action is taken against the alleged bully, leaving the victim to carry on working under an increasing cloud of depression because in his or her eyes, 'nobody believes me'.

In very serious cases where the employee claims to have suffered a personal injury (whether mental or physical) as a result of the bullying, a civil claim for damages can be brought in the High Court. The court will generally award damages if the organisation is shown to have failed to protect the employee in circumstances where harm suffered was reasonably foreseeable.

At the very least, all employers should have in place a documented grievance procedure for dealing with complaints and ideally, such procedure should be supplemented by further specific measures to address complaints of bullying.

The procedure should be implemented and at each stage, written records should be kept of meetings and the outcome together with any recommendations and agreements reached. Employers should be aware that most employees who feel they are being bullied will keep a detailed diary recording incidents and such evidence will be admissible in the employment tribunal.

Some larger employers have introduced internal but independent bullying advisors and supporters who then provide confidential information on the policies and procedures, in order to help the troubled employee identify the most appropriate action for their circumstances.

Employers may also choose mediators as part of the informal process for dealing with bullying and harassment and this has been shown to be successful in reducing the number of cases which are dealt with via the formal process or which end up in the employment tribunal.

In any event, employers cannot afford to ignore the problem and those who do face significant awards in the employment tribunal - not to mention the cost of management time and resources in dealing with a problem once it has escalated out of control, due to the failure of the employer to step in at an earlier stage.

In this regard, line managers play a vital role in nipping bad behaviour and bullying in the bud before this escalates and formal procedures begin. Often the human resources manager only gets involved when relationships have already irretrievably broken down. Training should be available at every level of an organisation so that no one is seen to be above behaving badly and people see that difficult issues are dealt with quickly, fairly and transparently.

For further information contact Paul Grindley by email: paulgrindley@keeblehawson.co.uk or direct telephone: 0113 3993424.

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