Bullying and Respect at Work Bill – a vital evolution of the employment law landscape?

The introduction of a statutory definition of bullying at work 

In July of last year a Private Members’ Bill sponsored by Labour MP Rachael Maskell, the Bullying and Respect at Work Bill, was presented in the House of Commons. The Bill called for the introduction of a statutory definition of bullying at work and an associated right for employees to bring claims of workplace bullying in an Employment Tribunal. 

In light of its potential advancement and debate before Parliament in 2024 this short article seeks to consider how a statutory definition and associated claim could be developed and the potential impacts of the same for both employers and senior executives.

What might the definition encompass and how might a claim be pleaded? 

Based on the wording of the Bill, it is envisaged that the legal concept of bullying may be constructed as an extension of the existing protection from harassment (as enshrined by section 26 of the Equality Act) by removing the requirement for the unwanted conduct to be related to a protected characteristic or of a sexual nature. 

Therefore, if enacted the definition of bullying is likely to refer to unwanted conduct that has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The definition will require both a subjective and objective analysis: a subjective test in terms of the impact of the conduct on the employee, fettered by an objective test of such conduct and whether it amounts to offensive or humiliating behaviour. 

The Bill suggests that a dismissal arising from bullying should be automatically unfair and therefore, it is likely that an employee will be able to bring a claim for automatic unfair dismissal under the Employment Rights Act 1996. The Bill also suggests a six-month limitation period for claims, rather than the usual three months for existing automatic unfair dismissal claims. 

What might the impact be for employers?

Whilst the Bill refers to the definition in connection with any claim requiring both a subjective and objective analysis and thus putting in a place a robust threshold for conduct to amount to bullying, the fact that specific legal redress may be an available option to employees and publicity of the same will naturally create an increase in bullying-related complaints being raised by employees.

Whilst it has always been open to employees to raise grievances about bullying they may have suffered, with the absence of any specific legal redress, studies have shown that victims have the tendency not to report concerns or opt to resign in defeat. The increase in complaints will inevitably include both genuine and vexatious matters. 

Employers should ensure that their grievance and investigation policies are regularly updated and fit for purpose in addition to ensuring staff are appropriately trained. It would also be wise to consider refreshing or introducing a specific respect at work policy that prohibits bullying in the workplace and sets associated behaviour/conduct requirements of staff so that there is a clear message of a zero-tolerance. Historically staff handbooks would typically cover bullying within an equal opportunities or discrimination and harassment policy, but given the increased focus on bullying it is advisable for employers to have a standalone respect at work policy that concentrates on bullying (without reference to discrimination, harassment or otherwise) and that explains clearly the standard of conduct expected of individuals and potential repercussions of infringing behaviour. 

Additionally, the Bill suggests that a Respect at Work Code be introduced, setting minimum standards for positive and respectful work environments that organisations must adhere to. Further, powers may be given to the Equalities and Human Rights Commission to investigate workplaces and organisations where there is evidence of a culture of, or multiple incidents of, bullying and to take enforcement action. In time therefore, organisations should ensure that they familiarise themselves with the Code and that policies and training are appropriately introduced or updated. 

What might the impact be for senior executives?

The additional legal redress partially plugs the current gap within the existing legal framework, because currently the only potential options pursuable in an Employment Tribunal by an employee in bullying-related circumstances are for constructive unfair dismissal (which requires the employee to i) have two years’ continuous service and ii) resign, and in any event is a high hurdle to meet in terms of legal construction), for whistleblowing detriment (but only if they have made a protected whistleblowing disclosure and their bullying is because of the same), or for discrimination/harassment (but only if they are able to link the bullying to one of the nine specific protected characteristic under the Equality Act). Therefore, the extra legal protection that may be afforded to employees for dismissals that have arisen from bullying is welcome.  

However, the majority of automatic unfair dismissal claims are subject to the statutory caps on compensation. Therefore, for senior executives and other employees that earn in excess of the statutory cap, which is currently set at £105,707, the requirement for the bullying conduct that they have received to be linked to a protected characteristic (for a harassment claim) or to a protected whistleblowing disclosure (for a whistleblowing detriment claim) remains in order not to be subject to any compensatory caps. 

In addition, it appears that redress would only be available in circumstances where an employee has been dismissed, which falls short of the current protection offered by way of harassment or whistleblowing detriment claims, as employees are able to bring claims in respect of the harassment or detriment suffered whilst remaining employed. For instance, an employee that is bypassed for promotion because they are a woman or a particular age, or because they have blown the whistle on wrongdoing would still be afforded more protection (by way of discrimination, harassment or whistleblowing claims) than an employee whose line manager has deliberately and maliciously bypassed them for promotion because they have taken a personal dislike to them with such behaviour constituting bullying only and not strictly discrimination, harassment or whistleblowing detriment by reference to the associated claims. 

Some advocate that it would be logical and fair for redress to be made available for victims of bullying but who have not necessarily been dismissed as a result, and it may be that this is considered as the Bill is discussed further in Parliament.

Moreover, as with discrimination claims, in addition to employers, individual perpetrators of discriminatory conduct are potentially personally liable for the harm suffered by victims. It may therefore be a possibility that individuals can be pursued personally by victims that have suffered bullying conduct from them. Individuals should therefore ensure they educate themselves and engage with any training or policies provided by their employer in respect of bullying so that they are cognisant of behavioural boundaries. 

Conclusion 

The Bill had its first reading in Parliament on 11 December 2023 and is due to have a second reading on 7 June 2024. We will keep you posted on any further developments. If you would like to discuss any issues relating to bullying in the workplace please contact us.