Thomas Beale argues that the lack of a statutory definition for workplace bullying and a set of protections to address it, must be corrected.
Recent months have seen significant reforms in employment laws, which has led to an enhanced protection of employee rights.
The Workers Protection Act 2023 is a much-anticipated addition to the Equality Act 2010, and one of the most notable developments. The legislation is a proactive approach to sexual harassment. It requires employers to take “reasonable measures” to protect their employees. This reform is commendable but an equally important issue remains unresolved. That issue is the widespread issue of bullying in the workplace.
There is currently no statutory definition for workplace bullying. This leaves many employees with inadequate protections and without viable options to pursue legal action.
Legal distinctions between sexual harassment and bullying
The Equality Act 2010 prohibits sexual harassment. This form of harassment is defined in the Act as “unwanted sexual conduct that has the effect or purpose of violating someone’s dignity or creating an intimidating hostile degrading humiliating or offensive atmosphere.”
The employment tribunal can award compensation to victims of sexual harassment if it finds that their employer failed to take the “reasonable” steps to prevent the misconduct.
The Equality Act does not cover general workplace bullying. It only covers bullying that is linked to an identifiable characteristic such as race, age, or disability.
Although bullying at work can sometimes be accompanied by discrimination or harassment, it is not always so.
Bullying is a wide range of behaviour that can be both overt or subtle. Examples of bullying behaviour include:
- Use of threatening or intimidating language
- Ridicule
- Unjustified punishment or criticism
- Overworking
- Denied training or career advancement opportunities
- Undermining.
Sadly, those who have been the victims of these types of bullying that are not related to a protected characteristic often find it difficult to seek legal recourse. These victims, who are not covered by the Equality Act 2010 and cannot seek legal recourse for their abuses, must explore other avenues that often fail to address their concerns.
Legal options for victims of workplace bullying
This issue has been made less serious by the inappropriate normalisation in the workplace of bullying behaviour. The long-term impact of bullying on victims is an important factor that is often ignored. Some people find that seeking justice by way of legal recourse can be a crucial step on their journey to recovery. A personal injury claim filed in civil court may be an option for such victims.
Victims who seek redress through civil courts can consider the Protection from Harassment Act of 1997. This act stipulates that employers are ‘vicariously responsible’ for the misconduct committed by their employees. To be successful under the Act, victims need to adhere to certain rules. For conduct to be considered harassment under the Act it must be “oppressive, unacceptable and calculated in an objective way to cause alarm or discomfort”.
This vague definition forced the court to intervene, and the scope was further narrowed. Case law states that conduct must meet a certain threshold to be criminally liable. This high threshold can be a challenge for those who want to pursue this path and excludes many cases of workplace bullying.
Claims in negligence
A claim for negligence could be made if the employer knew that bullying was occurring and did not take appropriate steps to protect victims from further harm. This route is also fraught with difficulties. It can be difficult to determine what the employer knew and when they were made aware of a situation.
It can also be difficult to obtain witness statements, since employees are usually reluctant to speak up against their employer. Many victims may find it hard to win a negligence claim without corroborative proof.
Even though there have been significant improvements in legislation to address sexual harassment, those who seek justice for bullying that is more generalised in the workplace still face significant obstacles. There are many obstacles to pursuing workplace bullying under existing legal avenues. In the absence of a clear legal definition, there is ambiguity about what constitutes bullying behaviour. This leads to inconsistent and uncertain legal options for victims.
It is important to avoid further narrowing anti-harassment legislation and instead push for a bespoke approach that addresses workplace bullying.
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