Paul McGowan is Managing Partner and Principal Solicitor at specialist employment law firm, Collingwood Legal. Paul considers the recent report into bullying allegations against Dominic Raab and the issue of bullying in the workplace.
Dominic Raab resigned from the Government on 21 April 2023 after an official report (“the Report”), authored by Adam Tolley KC, found that he had acted in an “intimidating” manner to his staff in Whitehall. The Report itself concludes that Mr Raab conducted himself in a manner which was “unreasonably and persistently aggressive” and that this conduct “also involved an abuse or misuse of power in a way that undermines or humiliates”. Mr Raab’s response to the findings poses various questions concerning what constitutes bullying and how it should be dealt with.
What is bullying?
Whilst the Raab affair deals with matters that have a political context, the report offers a useful prompt for employers. In Mr Raab’s resignation letter he warned that the Report’s findings had “set a dangerous precedent” by “setting the threshold for bullying so low”. So, what amounts to bullying in the workplace and how low or high should an employer’s tolerance be?
While there is no statutory definition or standalone claim of bullying that employees can bring, there is guidance by which we can assess whether conduct amounts to bullying. Acas guidance defines bullying as “unwanted behaviour” which 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”. Interestingly, the Raab Report referred to a High Court decision regarding bullying allegations made against then Home Secretary, Priti Patel, which defined bullying along similar lines.
Harassment and bullying are often coupled together, and it should be noted that whether an allegation of harassment is made out does not depend just on the purpose or intention of the conduct in question, but also the effect of the conduct on the individual. An act can amount to harassment even if it was unintended and, in practice, bullying will be much the same. With that in mind the legal threshold level can arguably be said to be set at the tolerance level of the victim of bullying rather than at a level the perpetrator of bullying thinks is reasonable or appropriate.
What legal risks do employers face when dealing with bullying?
The circumstances that led to the investigation appear to be similar to a workplace where junior employees were concerned about the behaviour of a manager where the manager views their conduct as strong management and appropriate rather than bullying.
While “bullying” in itself does not give rise to a valid claim in employment law it can be relevant to other claims an employee can bring. Fundamentally, all employers have an obligation to provide a safe working environment for all employees and an environment of workplace bullying may therefore be unsafe. In addition, bullying can constitute unlawful harassment, discrimination or victimisation, under the Equality Act when it is connected with a protected characteristic such as sex or race. Bullying, or an employer’s failure to adequately deal with bullying, may also give an employee ground to resign and claim constructive unfair dismissal on the basis that the employer is in fundamental breach of the employment contract.
Aside from any legal risk, unchallenged bullying is, of course, generally bad for business and likely to hamper performance and increase the turnover of employees.
What should employers do about bullying?
All allegations of bullying should be investigated and, where appropriate, disciplinary action taken. It may therefore be wise that employers have a specific Bullying Policy which clearly states the process to be followed and what forms of resolution are available. Providing a clear framework may also increase the confidence for all concerned that a proper process will be followed.
Collingwood Legal is a specialist employment law firm and we provide bespoke training and advice to organisations on all areas of employment law.