So here we go again, another attempt to legislate against workplace bullying. This is not the first – back in 2001 there was a Dignity at Work bill, a fantastically inept piece of drafting crippled alike by internal processes more complicated than the wiring diagram of a battleship and the inevitable (and as it turned out, insurmountable) problem of defining its core subject.
Now there is a new proposal, the subject of a parliamentary Motion earlier this month. This suggests a legal framework akin to the existing harassment regime under the Equality Act, but dropping the requirement that the offending conduct be related to any protected characteristic. For the reasons below, this amounts in effect to a right to be happy at work, and for that reason alone — there are many others to choose from — the prospect of this becoming law (which is very far from certain, let alone imminent) should hold enormous concern for employers.
The parliamentary Motion itself is laced with histrionic language as the justification for the proposal – “slowly and painfully the worker dies inside . . . for some of the pain is so great that they simply crumble . . . some never recover and some lose their lives. The power of a human to destroy another is very real“. Come on, folks – this is about iffy workplace behaviours, not depleted uranium. Of course, for the relatively few very serious cases of what can properly be described as bullying, this may well be true, but to legislate effectively to prevent that harm without the potential for colossal collateral damage is a very different question.
Further support for the Motion is drawn from statistics – “twenty-nine per cent of workers will experience workplace bullying at some point and one in ten has experienced it in the last six months“, it says. But without wanting to sound too sceptical, in the absence of court or tribunal findings, all that means is that those numbers of people have felt bullied (by reference to who knows what personal standards), not that they actually have been. It is those statistics, presented to legitimise the introduction of protections against bullying, which should sound the greatest alarm bells for employers and legislators. The UK workforce comprises, give or take, 30 million people. If even just one per cent of them used this new measure, a tenth of the number said to be affected, that is another 300,000 Employment Tribunal claims in just six months. Even purely logistically, the existing ET system simply could not cope.
So what is the much-vaunted first legal definition of bullying promised by the Motion, for on that rests the viability in both law and practice of the whole shooting-match? The intent seems to be to rely on something like the Acas definition, though on closer examination the question is actually ducked in the Motion. Instead what we get is that “any definition would require a subjective test – what is its impact – fettered by an objective test of the behaviours being offensive, malicious, intimidating or humiliating”. The obvious problem with this is that only the existence of malice is objective – what an individual finds as offensive, intimidating or humiliating is almost entirely subjective, effectively indistinguishable from the conduct’s impact.
The Motion suggests that “such tests provide a robust threshold for a claim”. However, not only is that not true on its face, but it also completely misses the practical point – the risk of legislation of this sort is not so much the ultimate likelihood of someone occasionally winning an undeserved thousand or two, but that just the threat of such claims (whether eventually successful or not) will cause enormous distraction, cost and stress to businesses and individuals. It would be the easiest thing in the world for a disgruntled employee to start such a claim, and frankly who could blame him? — it’s free, there are no adverse cost consequences and even just a reference to such a claim, never mind bringing it, would generate a protection against retaliation which he could keep in his back-pocket for when anything happened at work, possibly months or years later, that he didn’t much fancy.
The proposed new law is not off to a flier, therefore, an issue compounded by the sheer range of behaviours which any employment lawyer or HR practitioner will have seen alleged to constitute bullying, from shouting to silence, calling someone out in a meeting to ignoring them in a meeting, staring at them to not looking at them, criticising their work to not providing feedback, a telling-off in public where it can be seen to having performance meetings in private where they can’t, a whole panoply of gone-in-a-flash tones and phrases and body languages noticeable only by someone setting out to notice them, and so on. There is nothing in the proposal or the Acas definition which requires this to happen more than once – even the calamitous Dignity at Work Bill required the conduct to be repeated, but there is no such condition here, so a purely one-off loss of patience and we will be off to the races immediately.
What other issues might arise from modelling the anti-bullying legislation on the harassment regime?:
- compensation based on the Vento scales, says the Motion, setting the financial minimum for conduct at work which puts your nose out of joint (not literally; that is a different problem) at £1,100;
- presumably some equivalent of section 26(4) Equality Act, the provision by which an Employment Tribunal can rule that it is not reasonable for the allegedly bullying conduct to have the intimidating, humiliating or offensive effect claimed. However, while a lovely safeguard in principle, the same two practical problems arise as under harassment claims – first, the ET will be very reluctant to put itself in someone else’s shoes in terms of how the conduct should have landed, and second, it can only do so at the hearing itself, many months, thousands in costs and cratered workplace relationships later;
- probably also the right to sue individuals as well as (or instead of) the employer. So now if your boss gives you a talking-to you don’t think is warranted, why not whack in a quick application for Acas early conciliation against him/her and then a four-figure Tribunal claim? So much quicker and easier than talking about the issue like adults or perhaps even accepting that the situation arose in whole or part through your own substandard conduct or performance. Though the Motion assumes that bullying is pretty much all manager-on-subordinate, that is of course also untrue. We foresee some interesting conflicts for trade unions finding that they represent both accused and accuser.
- a possible defence for employers which can show that they had taken all reasonable steps to prevent that sort of behaviour through policies, training, etc., and a proposed extension to the ACAS Code to include “the promotion of positive workplace behaviours” with a compensation uplift for awards against employers which don’t; anda time limit for bringing ET claims – the Motion refers to “six months, like harassment” (though that is in fact only three), presumably extendable backwards if the victim can allege a continuing course of bullying conduct; and
- the extension of the protection beyond just your employees to workers, office holders and (I think this may be left over from some other legislative suggestion since it seems a snippy little reference of no relevance here) “the bogus self-employed”.
Bullying exists. It is damaging to individuals and businesses alike. Where conduct is found to be malicious, it will generally constitute gross misconduct and so the cure will be obvious and needs no new law. However, if you extend the reach of bullying away from malice then you are potentially penalising ordinary and isolated and possibly even entirely legitimate behaviours of fallible managers and colleagues and at the same time, as has happened with harassment, placing a financial premium upon the victim’s lack of resilience and theatrical over-reaction to workplace reversals and disappointments. Even King Canute would have sucked his teeth over the wisdom of trying to create competent unflappable managers and perpetually civil and professional colleagues through legislation.
If we really must, let us have some law which penalises malicious intent towards a colleague, whether senior or subordinate. But in formulating that, let the legislators not forget that there is in fact no right to be happy at work, to feel valued or respected by one’s employer, to never be told off or treated unfairly or embarrassed or upset by something someone says to you, and that so long as you have human beings working together, all of those things are simply bound to happen. On a less philosophical note, let them not forget either the practical consequences of theoretical idealism of this sort, i.e. the inevitable weaponising of the right to sue for “bullying” into a tidal wave of trivial or spurious legal threats thrown into every workplace grievance, along with the now traditionally irritating data subject access request for good measure.