We turn to the law to protect us and to provide a recourse to justice. If you have been a target of bullying behaviour, no such framework exists, unless you are able to identify that the detriment you have experienced is associated with a protected characteristic.
There are a few complex legal processes that individuals can draw on, but these are very difficult to prosecute and require the employee to leave their work before embarking on this precarious legal journey through constructive dismissal processes, only accessible after two years of employment, or a claim through the Protection from Harassment Act.
It is therefore widely recognised that there is a gap in legislation to protect workers from bullying. The UK is behind the curve. Jurisdictions from Canada to Australia, Scandinavia to many across Europe have well established law in this field.
Provide recourse to justice
My Bullying and Respect at Work Bill seeks to break the cycle of bullying at work through providing recourse to justice for those who have experienced bullying, while creating a framework for employers to institute a positive work environment, guarding against such misuses of power.
Rachael Maskell: "For each, bullying has a serious cost; for many, lasting trauma."
For the first time it will establish a legal definition of bullying at work, currently found in the ACAS code.
This Bill is needed as bullying is the second biggest issue that the TUC says that its members experience. Around 4.9 million people have experienced such detriment, which can be so severe that it leads to a complete breakdown in the mental health of a target of the abuse and loss of employment. Fifty-three per cent of those that experience bullying simply do not report. Without proper processes to deal with this, reporting may just expose you or attract further detriment.
Employers estimate that workplace conflict costs UK businesses £28.5 billion a year. Seventeen million working days are lost due to work-related stress, depression or anxiety, much stemming from negative workplace behaviours, such as bullying at work.
Establish a legal definition
The first step is to establish a legal definition of bullying at work. ACAS has refined its definition over time and has concluded that it does not have to be a repeated act: “Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”
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. Such tests, provide for a robust threshold by which to bring a claim.
Bullying can be by an individual or group; it can also be organisational, like deliberate procedural time delays in grievance management. It can be a frequent occurrence or a one-off act.
Fundamentally it springs from a power imbalance, positional (from a manager), psychological, or relational. It can be direct, or through a third party.
Fifty-three per cent of those that experience bullying simply do not report it. Photograph: iStock
It can be with intent or without, although remorse is often the judge of this. Often the perpetrator can reverse the blame, as those innocent of bullying are accused of being a perpetrator. This can be the worst bullying of all, as you are publicly labelled by the very people who bully you as they ‘play victim’.
Recourse to restitution
Once bullying has been established, then there needs to be recourse to restitution. For those with a protected characteristic, section 26 of the Equality Act 2010 provides a route to seek remedy; however, it is wrong that someone should have to depend on their protected characteristic to determine a case of bullying. For someone who does not qualify under the Equality Act, there is no legal protection.
Further, a dismissal arising from bullying could then seek remedy under the Employment Rights Act 1996, as an automatically unfair dismissal. The power of this approach is that, once the threshold tests have been met, the burden of proof moves to the employer to demonstrate that resignation of the employee was not necessary because appropriate measures had been taken to protect against bullying.
My Bill follows the tradition of harassment, but for those without a protected characteristic. Like harassment, it will have a six-month limitation to bring a claim.
Promoting positive workplace behaviours
My Bill then seeks to extend the ACAS Code of Practice to promote positive workplace behaviours. Clearly, failure by an employer to do so could see the compensatory award raised, but moreover see positive change ensue at work.
A perpetrator of bullying is unlikely to target just one individual. My Bill would empower employers to instigate change. Failing to do so, would enable the tribunal to compel an employer to abide by the Code, securing better workplace safety.
Should the perpetrator continue to bully, then this assists employers to manage their behaviour through conduct procedures and, where necessary, escalate a case to gross misconduct.
However, it must be recognised that some places of work have an endemic bullying culture. I have therefore set out a role for reporting, investigation and enforcement in line with the management of environments where discrimination occurs. In extending the role and powers of the EHRC (Equalities and Human Rights Commission) to investigate and report, and to issue enforcement notices, workplace cultures will change. Clearly the involvement of the EHRC would need to be funded.
My Bill, while seeking to promote respect at work and positive behaviours, recognises that legislation is needed to have a chilling effect on negative behaviours and to enable all those at work, whether employee, worker, bogus self-employed or office holders, to seek restitution. As with other rewards, the tribunal service would depend upon the remedies determined by the Vento Tariff and would therefore access the compensatory award for injury to the applicant.
For each, bullying has a serious cost; for many, lasting trauma. Without recourse to justice, many will leave their employment. My Bill therefore sets out the framework necessary to create safe working, and for employers to build a respectful workplace to the benefit of all.
Rachael Maskell MP is Labour (Co-op) MP of York Central
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