A game changer in the treatment of bullying?

The way in which we treat bullying at work has changed significantly this year. No more so than in law firms where surveys have shown it to be a real issue. The Private Members Bill introduced into the House of Commons by Rachael Maskell MP on 11 July may well alter the landscape some more. 

The bill will not become law without government backing, but it is of interest because it provides a statutory definition for bullying at work and proposals that would allow standalone claims relating to workplace bullying to come before an employment tribunal. It also sets out a new Respect at Work Code. This would set out minimum standards for the work environment and the Equalities and Human Rights Commission would be given powers to investigate workplaces. If it found evidence of bullying the commission would be able to take enforcement action. Now that they are in circulation, any or all of these elements might be adopted in future legislation by a government that is keen to act in this area.

This is a world away from where we were at the beginning of the year. First, until now we have struggled even to find a judicially accepted definition of bullying, something that was highlighted by the investigator (Adam Tolley KC) in the Dominic Raab case when he published his report into allegations of bullying by the then deputy Prime Minister earlier this year on 20 April 2023. Secondly, bringing a bullying case in the UK has hitherto generally only been possible if it is in the context of some other claim, most commonly discrimination based upon one or more of the protected characteristics of sex, race, disability, age, religion and/or belief and sexual orientation, or possibly via an unfair constructive dismissal claim. Other avenues such as a personal injury claim in the common law courts are available, as are claims under the Protection from Harassment Act 1997, but these are comparatively rare.

Given all the action to conquer other instances of bad behaviour in the workplace, it was always odd to see bullying as an outlier in this respect. For solicitors this all changed with the coming into force in April 2023 of rule changes to the SRA Codes of Conduct. These now place an express obligation on solicitors to treat colleagues fairly and with respect, and confirm the obligation not to bully, harass or discriminate. But this is in a regulatory context.

The Bill moves the debate on further. If enacted, it will give victims of bullying in any workplace including law firms, irrespective of whether such treatment is discriminatory on the grounds of one of the protected characteristics, the right to sue.

Whenever legislation has moved into new territory in an employment context, it almost invariably leads to an upsurge in claims, sometimes after a time gap whilst everyone gets used to the new environment and the available remedies. We have seen this many times in the past, in fields such as disability discrimination, age discrimination, sexual orientation and religious discrimination. We even saw it in relation to sex when sexual harassment came to be expressly covered by legislation, rather than just being seen to be a species of sex discrimination. Few would doubt that if this Private Members Bill becomes law, this is what we will see when there are instances of unchecked bullying in the future.

Will it change behaviours? Almost certainly it will. Take the example of age discrimination, an issue that has certainly affected law firms in the past. A Code of Practice was introduced in 1999 and despite the good advice it provided it was widely ignored. Then along came a European Directive in 2000 which heralded the introduction of the then Age Discrimination Regulations and age discrimination ceased to become an issue that was honoured more in the breach. It began to be taken seriously. Law firms, perhaps unsurprisingly, featured strongly in the early cases.

There is plenty of guidance out there now in relation to bullying, the Acas guidance paper “ Bullying at Work” chief among them. That carries advice to employers to “do all they can to try to prevent bullying happening and to take any bullying complaint seriously and look into it as soon as possible”. But, as with the Government’s own guidance “Workplace bullying and harassment”, it has to make clear “Bullying itself is not against the law, but harassment (based on the protected characteristics) is”. That is precisely what may now be about to change.

There are bound to be those long embedded into law firm culture who complain that such organisations require high performance from their staff, and managers in charge must be given the power to deal with those who do not meet those standards and guide them on the path to better and more appropriate performance. But as Adam Tolley KC confirmed in relation to the Dominic Raab case, his findings were based “on the premise that it is necessary and appropriate to distinguish between “legitimate reasonable and constructive criticism” of an employee’s performance (on the one hand,) and behaviour capable of being regarded as bullying (on the other)”.

Given the fact that the current Government has shown itself willing to adopt Private Members Bills to bring about a change in the law when it comes to employment protection, this year may be looked upon in the future as the moment the treatment of bullying in the UK changed forever. In any event, the new regulatory regime is a game changer for law firms in this area of the law, even if the Private Members Bill ultimately fails to become law.

This article was first published on Law Society Gazette on 28th July 2023.

Further information

If you have any questions regarding the information above, please contact Richard Fox or Sinead Minkah in our Employment team. 

about the authors

Richard Fox is a senior consultant within the Employment team. He has been at Kingsley Napley throughout his career and until October 2019, led the Employment team since its inception more than 25 years ago. Richard acts for corporates, organisations and senior individuals in relation to employment matters of all kinds.  These include confidentiality and restrictive covenants, executive pay, bonus and severance arrangements, unfair dismissal, discrimination, whistleblowing and redundancy programmes.  He is frequently asked to advise in situations involving allegations of sexual misconduct in the workplace following the rise of the #MeToo movement, and the cases that have followed. This includes conducting (as investigator) and advising on investigations into such conduct.

Sinead Minkah is a trainee solicitor within the Employment team. She joined Kingsley Napley in 2021 and started her seat with the Real Estate and Construction team, then did her second seat with the Private Client team and her third with the Criminal Litigation team. Prior to joining the firm Sinead worked as a paralegal in the Commercial Real Estate Team at Allen & Overy. Sinead has also worked in regional firms such as Debenhams Ottaway working for local businesses on landlord & tenant matters in St Albans. Sinead worked as an in-house paralegal at a Hedge fund Tishman Speyer on a number of Global real estate Joint ventures. Sinead has undertaken Vacation Schemes at Mishcon De Reya and Goodwin.