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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
Employers have been crying out for years for clarity as to what exactly is meant by “bullying” in the modern workplace. What counts as reasonable and constructive criticism on the one hand, and intimidating or insulting behaviour on the other? The Raab case has brought this to a head. Indeed, there seems to have been more debate about this important question since publication of the Tolley report, than almost anything else to do with the case. And there is, in fact, a solution.
Mr Raab put his finger on the problem. In his article for the Telegraph on Friday, he complained that “normal rules of evidence and procedural fairness” were not applied in his case. As an example, he cited the “three-month time limit for bringing bullying claims in an employment tribunal”.
But that is exactly the point. There is no 3-month time limit for bringing “bullying claims” before the Employment Tribunal here in the UK, for there is no statute or regulation that specifically prescribes such behaviour. Instead claims of “bullying” have to be brought by other means. Often that is by complaining of discriminatory treatment. But shoehorning a bullying claim into one that alleges sex, race, disability or age discrimination, may or may not fit with the facts when really it should be the allegation of bullying itself that should lie at the heart of the case.
Recognising the problem posed by what behaviours were or were not acceptable in Raab’s case, Adam Tolley KC dealt with the issue carefully. It took up 5 of the 48 pages of his Report. He drew particularly from a decision of the High Court in 2021. This was in the context of the Judicial Review of then Prime Minister Boris Johnson’s approach to the complaints made against the previous Home Secretary, Priti Patel.
That case was brought upon the basis that “bullying” meant the following; either “offensive, intimidating, malicious or insulting behaviour” (whether intended to have that effect or not). Or “abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient”.
Crucially, this was the definition of “bullying” that Mr Tolley used for the purposes of his report into Dominic Raab. As such this is likely to be the standard used in bullying cases in the future. It may be different to 25 years ago, but we have seen in the field of sex harassment how standards can change, and how important it is to ensure behaviours in today’s workplaces match the standards of today.
So given all the publicity the Raab case has attracted over the last few days, is this a seminal moment in the history of dealing with bullying cases in the UK, in the same way that #MeToo has proved to be such a watershed moment in relation to sexual harassment in the modern workplace?
Before we get too carried away with the importance of this case, there does remain a critical issue. Although Tolley’s report may read for some like a formal judgment, to be followed in subsequent cases as if it constitutes some sort of “binding authority”, it is not. In that sense it shows how wrong it has been that successive Governments have ignored calls for a new, fit-for-purpose, “bullying” bill to be brought before Parliament. That could provide much needed clarity around what behaviour does or does not cross the line when making comment (as all employers have to do from time to time) about a worker’s performance.
There will always be shades of grey on the matter of bullying, and one can never be definitive about what sort of behaviour in every given circumstance should or should not be prescribed. However, it is no longer fair for employers and their workers to be left with uncertainty around one of the most important issues that we face today. Anti-bullying legislation must surely now be a priority.
This article was first published on HR Magazine on the 24th April 2023.
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