Employees are protected by law from being bullied at work. But it’s not always easy to know what your rights are and how to enforce them. If you are feeling emotionally distressed or professionally vulnerable because of the unwanted discriminatory behaviour of others, you may even get to the point where you feel you have no choice but to resign.
Before you take action, it is best to seek advice on your situation and to try to understand the law relating to workplace bullying, and what legal rights you have if you’re being treated unfairly at work.
What is workplace bullying?
There is no single, legal definition of workplace bullying, although it has been defined by ACAS as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.
Essentially, bullying is unwelcome conduct from either an individual or group of people that causes you to feel offended, intimidated, undermined, humiliated and/or degraded.
Bullying at work can apply to a wide range of unwanted behaviours, from subtle behaviours or conduct that are difficult to detect by others through to more overt and blatant acts or conduct. Common examples of bullying at work can include:
- Being ridiculed, demeaned or humiliated
- Being undermined by unfounded or constant criticism
- Being ignored in discussions or talked down to
- Being set unachievable targets or given heavier workloads
- Being subjected to unreasonable or repeated demands
- Being denied training or promotion opportunities
- Being subjected to overbearing supervision
- Being subjected to unfounded threats about job security
- Being unfairly excluded from emails and meetings
- Being unfairly excluded from team activities and social events
- Being subjected to inappropriate banter or teasing
- Being subjected to verbal abuse or sexual innuendo
- Being subjected to inappropriate physical gestures or facial expressions
- Being subjected to false and malicious rumours.
The bullying might be a course of conduct over a prolonged period of time or a one-off incident. It can take place face-to-face, in emails or phone calls. It can also occur outside office hours, for example, at a work social event or even on social media.
Legal protections for employees
As an employee, there are certain legal provisions in place to protect against workplace bullying. In some cases, the unwanted conduct may amount to harassment under the Equality Act 2010. Harassment can also often take place alongside other forms of discrimination or victimisation. In other cases, whether as a result of harassment or bullying in the wider sense, the conduct may be sufficiently serious to justify treating yourself as having been unfairly dismissed. This is known as constructive unfair dismissal and can give the victim grounds to bring a tribunal claim.
The nature and severity of the unwanted conduct that would be deemed sufficient to justify a forced resignation can vary, depending on the impact on the victim.
In all constructive dismissal claims, there must be evidence of a serious breach of the implied duty of trust and confidence between the employer and employee. This means that, for a constructive dismissal claim to succeed, you must be able to show that your employer’s behaviour, or any failure to take all reasonable steps to prevent any bullying or harassment from taking place, amounts to a fundamental breach of trust, and you resigned because of this.
To prove constructive dismissal, you must also show that you’ve worked for your employer for a continuous period of more than 2 years.
Bullying or harassment?
Workplace bullying is not a legally actionable claim in itself but can, in certain instances, amount to harassment under the Equality Act 2010. As such, if you’re being bullied at work, and where that conduct or treatment amounts to harassment, this will be classed as unlawful.
Under the 2010 Act, your employer or work colleague(s) will be treated as harassing you where they’ve engaged in unwanted conduct related to a relevant protected characteristic, and that conduct has had the purpose or effect of either violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive working environment for you.
Harassment is therefore a form of bullying and discrimination combined, where the protected characteristics include age, disability, gender reassignment, race, religion or belief, as well as sex and sexual orientation.
Harassment also includes conduct of a sexual nature, or where you’ve been treated less favourably because you’ve either rejected or submitted to unwanted sexual behaviour, or behaviour related to gender reassignment or sex.
The unwanted conduct complained of need not be directly aimed at you, provided that the conduct has still had the effect of violating your dignity etc. The law on harassment can also apply to you in circumstances where it’s thought that you possess a protected characteristic even if this isn’t the case, (known as perceptive discrimination), or because you’re associated with someone who possesses a particular characteristic.
An example of workplace harassment could be where you’re being teased or ridiculed because you are homosexual or thought to be homosexual. This includes conduct that is only intended as friendly banter or harmless fun, but nonetheless, the effect of any comments or behaviour causes offence. It could also include where you witness someone else being treated in this way.
Unlike a claim for constructive dismissal, to bring a harassment complaint with the employment tribunal you do not have to resign from your job first. You will also be eligible to claim compensation regardless of how long you have worked for your employer, where there is no qualifying period of service here.
Employers’ duty to victims of bullying
By law, all employers have a duty of care towards their employees to ensure that they are not subjected to any unwelcome behaviour or unfair treatment at work. This means that they’re legally responsible for preventing bullying in the workplace, and may be liable for any unwanted conduct that constitutes harassment.
Most employers will have some form of written policy in place on bullying and harassment. This can usually be found in either a staff handbook or on the staff intranet site. If you are unable to locate any procedure, you should make inquiries with your line manager or employer. However, even absent any formal procedure to deal with these types of behavioural issues, an employer must still take steps to address any complaints of unwanted conduct. If you’ve been treated unfairly at work you may be able to sue your employer, even if they’re not directly responsible for the behaviour complained about but they do nothing about it.
As such, once any bullying or harassment has come to light, an employer is duty-bound to act. In particular, once an employee has made an official complaint about this type of unwanted conduct, the employer is obliged to investigate that complaint, and to ensure that they take every reasonable step to prevent and eradicate any further incidents.
What to do if you’re being bullied at work
If you feel you are being bullied or harassed at work, the way in which you deal with this will often depend on the nature and severity of the unwanted conduct, as well as how long this has been taking place.
In relatively minor cases, or for one-off incidents, often making an informal verbal complaint to your line manager should result in steps being taken to resolve the matter. You could also report the matter to someone from HR, or even a staff or trade union representative where there is one.
In cases where the bullying or harassment is more serious, or where there has been a prolonged and repeated course of conduct over a period of weeks or months, you may need to raise a formal grievance with your employer. The employer will then be obliged to follow a formal procedure, investigating the nature of your allegations and, where necessary, taking disciplinary action against those responsible for the conduct complained of.
Where the matter is minor or an isolated incident, this can often be dealt with quickly and effectively by way of a verbal warning for the perpetrator. It’s not uncommon for bullies to be wholly unaware of the impact of their behaviour, where an informal chat can lead to a greater understanding and an agreement that the behaviour will cease. However, for more serious cases, even formal disciplinary sanctions may not necessarily eradicate the unwanted conduct, where there could be a recurrence of the bullying or harassment moving forward.
That said, by putting your complaint in writing, this will help to support any potential claim for harassment. It will also help to preserve any claim for constructive dismissal if you feel forced to resign. Further, even though you’re not legally required to raise a formal grievance before making a claim to an employment tribunal, any failure to do so may be construed as unreasonable, resulting in the tribunal reducing any award of damages by up to 25%.
What if your employer does not meet its obligations?
If your employer fails to meet their obligations to take all reasonable steps to put a stop to any bullying or harassment in the workplace, notwithstanding that you have raised your concerns in line with the organisation’s grievance procedure, you should seek expert legal advice. You may have a claim for harassment. You may also, or alternatively, have the basis for a claim for constructive dismissal if you choose to resign. That said, both types of claims can be difficult to prove. Moreover, leaving your job without any guarantee of successfully claiming damages against your employer for an alleged breach of contract, can be a risky strategy.
By seeking advice from an expert specialising in employment law, this can help you to explore all available options and to make an informed choice about what to do next. This could include, for example, informing your employer that you are working under protest. This can be used as a tactical step to preserve any future constructive dismissal claim, where you are effectively letting your employer know that you are continuing to work for them subject to the proviso that if the bullying or harassment continues you will feel forced to resign.
How to prove a complaint of bullying at work
In many cases, those on the receiving end of bullying or harassment may not want to report this behaviour, either to avoid exacerbating the situation or because they have no clear evidence of what has been happening to back up their complaint.
By keeping a record or diary of any incidents of unwanted conduct is a good way of documenting exactly what has been happening and the impact that this has had on you. Ultimately, if the conduct continues, you may have no other choice but to make a complaint, where contemporaneous, diarised entries of each and every incident will help to corroborate your account.
To keep an accurate record of any incidents of bullying or harassment, you should include:
- The time and date that this happens
- Where the bullying took place
- What was said or what was done
- In what form, eg, face-to-face, by telephone or email etc
- How the bullying made you feel
- Any witnesses to the incident
- Any evidence, such as emails or screenshots of social media posts.
Most bullying and harassment happens out of sight of others, but this does not prevent you from reporting any incidents to get the situation resolved. There are also legal protections in place for victims of bullying that can be effectively utilised, with the right legal advice and support, if the unwanted conduct continues.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
