Now there’s an opportunity missed. I do not know how it passed me by, but according to the Guardian Online, the last week in March was Bullying At Work Week, marked by a series of earnest articles about exactly what bullying is (still not clear) and exactly what you can do about it legally (still not much).
Any analysis of the topic swiftly runs headlong into the problem that one man’s bullying is another’s bit of fun or robust management. What might pass completely unnoticed on the docks, in the Forces, or on a City trading floor could ruffle all sorts of feathers in more genteel environments. So producing a meaningful and enforceable legal definition of bullying is next best thing to impossible, which is probably why it has not happened and therefore why English law does not provide any remedy for bullying per se – for bullying on the grounds of an Equality Act protected characteristic, certainly; to such an extent as to make the victim ill, possibly; to put him in fear of violence, probably; and to repudiate his employment contract, definitely – but not for good old decent British management thuggery. Or, much more likely, for the relevant manager’s lack of experience in dealing with circumstances which have the potential to become stressy and confrontational, thereby ensuring that that potential is fully realised.
The most commonly-quoted definition of bullying is from ACAS: “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied.” The Health and Safety Executive indicates that this will generally refer to behaviours occurring “repeatedly and persistently“, perhaps tacitly accepting that a one-off incident is (a) less indicative of malice; and (b) the sort of periodic poke in the eye which everyone must expect at work from time to time.
You can see immediately the scope for argument around most of the ACAS definition – “I felt offended, intimidated, undermined” [whether there were objective grounds to do so or not], “my shouting at you was a use, not abuse, of my power, because nothing else has made any difference”, “I don’t have any power to abuse because I am your peer, not your manager”, and so on. The only really objective term in there is “malicious”, a specific state of mind which either is or is not present in the perpetrator at the time. That is the word which separates “bullying” from people just behaving in ways which others do not like. That is why most bullying complaints refer to someone being picked on, singled out, etc., whereas a complaint that the manager is just an oik to everyone all the time obviously lacks the same punch.
Of course, some behaviours are so overt or flout sufficient prior guidance that you cannot help but conclude that they are malicious. The deliberate bullying of a colleague is serious misconduct potentially justifying dismissal. However, it is my perception that this is relatively rare. The questions we most often get from clients around this area indicate that two parties to a work place spat (the origin potentially so long ago and so trivial that neither can now remember what it was) simply lose their sense of proportion and self-awareness around what the other says and does and what he means by it.
There are two possible solutions. First, take disciplinary action but be aware that the one complained about is likely to come out fighting (no-one likes being called a bully, especially a bully), thereby souring the relationship beyond repair. Alternatively, absent the clearest evidence to the contrary, treat it as a communications failure, not misconduct. That means each party having the opportunity to explain how the other makes him feel and how that in turn affects his behaviour. Behaviour which is explicable, even if you do not agree with the explanation, is generally easier to accept for the recipient, not least because if there is an explanation, it displaces any suggestion of malice. Behaviour which is inexplicable even by the perpetrator is likely to stop as soon as he realises this.
Of course, such an exchange is easy to suggest and harder to arrange. Each party has to be willing to listen calmly to the other’s truth (which may not accord with their own version). Maybe tougher still, each must also be willing to voice those concerns directly to the other. Experience shows that in those circumstances the person talking will default either to terrified silence or a shock-and-awe barrage of personal allegations which feels briefly liberating but is actually fatal to the relationship.
Where that relationship is worth the investment, consider mediation. In particular, whether your mediator is internal or external, ensure that he/she spends time with each of the parties separately in advance, encouraging them to consider what they will say to the other, and how. Can they say anything positive about how they have worked well together in the past? How they regret the current tension between them? These should not be controversial sentiments. Can they phrase what they say as “I” rather than “You”? The point is that “I feel intimidated by you” is less confrontational than the head-on allegation “You intimidate me”.
I think that most people in a bullying complaint would prefer to talk it out like adults than to take on the artillery duel and collateral damage of a formal grievance process. They recognise as a rule that the other person isn’t going to be sacked and that they themselves need the job. If you can provide them with that opportunity early on through the offer of mediation (call it facilitation if it sounds less formal), you stand a much better chance of saving the day.