Sadly, the NHS has again hit the headlines for all the wrong reasons; a report from the Care Quality Commission has revealed staff at a Shropshire hospital trust being investigated over a high number of baby deaths have reported a culture of bullying and harassment and were “fearful” about raising concerns or issues.
Bullying is not, however, a problem exclusive to the NHS or even the public sector. Workplace bullying is just as much a problem in the private and charity sectors and while its impact in the NHS can be expressed in terms of life and death, it affects productivity and increases absenteeism in all organisations. If any justification for tackling this issue and promoting healthy working environments were needed, these issues alone make for a strong business case.
Indeed, the mounting research confirms that levels of workplace bullying are increasing and it is costing businesses hundreds of millions of pounds each year. And yet despite this, there is no legal definition. Acas (the Advisory, Conciliation and Arbitration Service) defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse or power through means that undermine, humiliate, denigrate or injure the person being bullied”. The Health and Safety Executive emphasises that this is a pattern of behaviour rather than isolated instances, happening “repeatedly and persistently over time”.
An employee is likely to explain a one-off incident to him or herself as being, for example, a result of a misunderstanding or even their fault. Unfortunately, this type of behaviour is by its very nature something that rarely happens once. In those instances, the main barriers to reporting bullying appear to be the perception nothing will change, not wishing to be seen as a troublemaker, the seniority of the bully, the fear that the bullying will get worse, or the fear or real risk of being dismissed.
Arguably, it is of little help to establish a pattern of deplorable behaviour if there is little or no legal recourse, or one that the employee can afford to pursue either because of lack of money or emotional wellbeing. This may also be another reason why employees are hesitant to speak up because if the bullying is not harassment as defined by the Equality Act 2010 (a topic covered in more detail in Blackadders’ most recent Employment Lawyer in Your Pocket podcast) the most likely legal claim is a statutory claim for constructive unfair dismissal.
However, it seems unjust that an employee who has overcome their fears and reported workplace bulling – in the hope that positive intervention will make it stop and they can work without fear or upset – is ultimately left with the choice of either resigning or continuing to suffer in their job. This may be because their report was not believed, adequately addressed or the bullying continued regardless. The decision to resign is rarely taken lightly, not least because of the financial consequences but also because our jobs are important factors in our lives.
There is often no explanation or reason one person subjects another to the type of behaviour defined by Acas or at least, not one that is necessarily unlawful. If the reason were related to, say, a protected characteristic a harassment claim is possible without requiring the employee to resign and with a potential victimisation claim if they suffer a detriment for having done a protected act. The issue appears to be whether it is time to review the protections and rights of recourse afforded employees who are the subject of workplace bullying and if they are adequate.
Donna Reynolds is an Employment Law Partner with Blackadders