Anti-Bullying Week: Understanding the Legal and Cultural Risks

This week is Anti-Bullying Week, an important opportunity to reflect on workplace culture and the need to create environments where respect and inclusion are the norm. Despite increased attention on this issue, recent research highlights that one in seven workers has experienced bullying at work, so there is clearly room for improvement and progress.

In this article, we explore what bullying at work looks like, the legal framework surrounding it, and practical measures employers can implement to prevent and tackle this pervasive problem.

What Does Bullying at Work Look Like?

Bullying in the workplace generally refers to repeated, offensive, intimidating, malicious or insulting behaviour, often involving a misuse of power, that undermines, humiliates, denigrates or injures the recipient. It can occur between managers and staff, between colleagues, or even from junior staff towards more senior employees.

Importantly, bullying is not limited to face-to-face interactions (verbal name calling, for example) or physical behaviour (such as pushing or hitting).  It can also occur via emails, text messages, or other forms of electronic communication such as social media (often referred to as cyberbullying) and may also be insidious or hard to recognise at first.

Examples of bullying in the workplace include persistent criticism, exclusion from meetings or social gatherings/circles, manipulation, intimidation, spreading malicious rumours, or excessive and unwarranted monitoring of work. Workplace policies and guidance documents often provide working definitions of bullying to provide staff with guidance.

The Anti-Bullying Alliance in the UK defines bullying as:  The repetitive, intentional hurting of one person or group by another person or group, where the relationship involves an imbalance of power. Bullying can be physical, verbal or psychological. It can happen face-to-face or online

Is There a Legal Definition of Bullying?

Unlike in France or Germany, where bullying is defined by legislation, there is currently no statutory definition of “bullying” in English employment law.

The law instead relies on related concepts such as harassment, discrimination, and breach of the implied duty of mutual trust and confidence.  Case law has, however, established that whilst there is no legal definition of bullying, the courts can and do interpret workplace policies and codes of conduct that refer to bullying.

Courts recognise that the workplace can involve stressful situations and that not every instance of unpleasantness or strong management amounts to bullying. The key factors are the persistence, severity, and impact of the behaviour on the recipient.

In the context of work, bullying is more than simply being managed strictly or held to high standards; it involves conduct that is genuinely offensive, oppressive, and intended (or at least calculated) to cause harm or distress.

Some professional regulators have attempted to fill this gap in the law by defining bullying themselves in setting out the standards of behaviour they expect from the professionals they regulate.  The Solicitors Regulation Authority (SRA), for example, defines bullying in its guidance for workplace environment as including unwanted behaviour that is either:  offensive, intimidating, malicious or insulting; or an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.  The SRA recognises that bullying can be a regular pattern of behaviour or a one-off incident and that it can happen face to face or remotely. 

Is There a Standalone Legal Claim for Bullying?

There is no standalone cause of action for “bullying” under UK law. However, bullying behaviour may give rise to legal claims if it amounts to:

1. Harassment or discrimination under the Equality Act 2010: If the bullying is related to a relevant protected characteristic (such as race, sex, disability, religion, etc.), it may amount to unlawful harassment or discrimination.
    
2. Constructive dismissal: Persistent bullying can amount to a breach of the implied term of mutual trust and confidence, entitling the employee to resign and claim constructive unfair dismissal.
    
3. Personal injury (negligence): If the bullying causes foreseeable psychiatric harm, and the employer has failed to take reasonable steps to prevent it, there may be a claim for damages.

An employer will have a defence against a claim for harassment if it can show that it took all reasonable steps to prevent such harassment or discrimination from occurring (this is a high hurdle to overcome).

In addition to legal claims, a workplace with a seemingly accepted culture of bullying behaviour is likely to suffer reputational damage and will struggle to attract and retain talent.

Practical Tips for Employers

Given the potential for significant legal and reputational risks, it is essential for employers to take proactive steps to prevent and address bullying at work. Here are some top tips:

• Have a clear policy: Implement a clear anti-bullying and harassment policy, setting out definitions, examples relevant to the specific workplace/sector, reporting procedures, and consequences for breaches
• Training and awareness: Provide regular training for staff and managers to recognise bullying, understand the company’s policy on this, and know how to report concerns.
• Encourage a “Speak-Up” culture: Foster an environment where employees feel safe to raise concerns without fear of retaliation.
• Act promptly on complaints: Take all complaints seriously and investigate them promptly and fairly in accordance with internal grievance and other relevant policies. Failure to do so can itself be a breach of the implied term of trust and confidence.
• Support affected employees: Offer support to those affected, including access to counselling or occupational health services where appropriate.
• Monitor the workplace environment: Regularly review workplace culture and take steps to address systemic issues that can give rise to bullying.

Conclusion

While there is no standalone legal claim for “bullying” in the UK, employers cannot afford to ignore it. Bullying can give rise to a range of legal claims and can cause significant harm to employees and to employers, including on their organisational culture and reputation. Given the reported figures of those reporting that they have experienced bullying at work, it is more important than ever for employers to take meaningful steps to prevent and address this issue.

further information

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