Dominic Raab and the threshold for bullying

Background

Last week saw the resignation of the Deputy Prime Minister, Dominic Raab, after an investigation into his conduct towards civil servants at the Ministry of Justice was deemed workplace bullying. The investigation report into these findings was carried out by Adam Tolley KC and published shortly after Dominic Raab’s resignation.

Adam Tolley KC concluded that some of Dominic Raab’s actions constituted ‘bullying’ under the definition offered in the Ministerial Code, where bullying is defined as conduct from a person or group including “offensive, intimidating, malicious or insulting behaviour; or (2) Abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient”.

There is no statutory definition of bullying. As a result, what constitutes bullying according to a given organisation is usually defined by company policy and can be ambiguous and open to interpretation and potentially criticism.

Mr Raab criticised Mr Tolley’s interpretation of the Ministerial Code arguing “the threshold for bullying is so low…and will encourage spurious complaints against Ministers”. However, without a clear statutory definition of bullying, and therefore a lack of judicial interpretation to fall back on, investigators such as Mr Tolley are placed in a difficult position when judging whether conduct meets that threshold.

Defenders of Mr Raab have indicated that his behaviour was just that of an authoritative individual in a high-pressure role and that his detractors form part of a new over-sensitive generation sometimes labelled “snowflakes”. Contrastingly, a stricter approach to address individuals who make work life unbearable for some could produce measurable employee wellbeing improvements, which is more beneficial to employers.

What legal protection is afforded to those bullied at work at present?

A constructive dismissal claim under a breach of contract

In the absence of a definition of bullying, an employee (of two or more years’ continuous service) has the right to bring a constructive dismissal claim for breach of contract, where they are forced to resign in circumstances where the employer’s conduct has fundamentally breached their employment contract.

In the bullying context, the most likely argument would be that the employer has undermined the implied term of mutual trust and confidence in either: it’s culpability directly or indirectly in the bullying behaviour of their colleagues or in its failure to take action when the bullying behaviour was brought to its attention.

A reliance on a constructive dismissal claim in relation to workplace bullying has serious flaws for the bullied party for a number of reasons.

1. The employee must resign in order to bring a constructive unfair dismissal claim – this poses a risk for the bullied individual as they will need to find alternative employment, with no guarantee of a successful claim.
2. If the resignation takes place too long after the bullying conduct, the employer can argue that the employee has waived (accepted) the breach.
3. The employee must show that the bullying stems from the root of the employment relationship and that the employer failed to take reasonable steps to prevent it – which can be hard to prove.

A claim of harassment – an imperfect solution for the bullied

Due to the risks inherent to a constructive dismissal claim, many bullied employees instead opt for a harassment claim, but to do so relies on the employee being able to demonstrate the bullying is due to a protected characteristic.

Harassment is defined in s.26 of the Equality Act 2010 (EA 2010) and is present when an employee has been exposed to unwanted conduct of a sexual nature or related to a relevant protected characteristic, which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive work environment.

In a non-sexual harassment case of bullying, an individual must prove that the unwanted conduct of the bully was related to a protected characteristic (for harassment these are): age, disability, gender re-assignment, race, religion or belief, sex or sexual orientation.

Given this wider harassment definition, which only requires the unwanted conduct to be “related to” rather than “because of” a protected characteristic, there have been some seemingly strange case outcomes. For instance in Finn v The British Bing Manufacturing Company Limited one of Mr Finn’s colleagues, Mr King, labelled Mr Finn a ‘bald [expletive]’ whilst threatening him verbally.

The facts of the case indicate a classic bullying scenario involving intimidation and threats but without a statutory claim for bullying Mr Finn was resigned to framing his claim as one of harassment. He was successful in his argument that his baldness was a characteristic related to his sex (arguing men are statistically more likely than women to be bald) and that the harassment he faced was therefore related to his sex.

This kind of legal gymnastics seem to be indicative of Tribunals attempting to punish employers like Mr Finn’s for inaction in the face of serious workplace bullying; however, this case and the coverage of it in the media suggests that a lack of a bullying definition risks devaluing the public’s perceptions of the legal definition of harassment.

Conclusion

With increasing scrutiny over public allegations of bullying, it may be time to consider introducing a legal definition of bullying. This could give more clarity (through case law and judicial interpretation) to both the bullied and the accused, than we have with the present focus on the employer’s bullying and harassment policies. Giving victims a stand-alone claim that can be brought without having to resign could lead to much needed organisational changes. It will also help set a threshold between reasonable but robust management and bullying.

Preventing bullying in the workplace

Below are some suggested ways that an employer can reduce bullying in the workplace.

1. Employee consultation and buy-in to anti-bullying and harassment policies is key. If a consensus can be achieved on a workplace bullying definition, then this gives greater clarity to all parties.
2. It is also important for employers to foster a workplace culture where employees feel comfortable making complaints about bullying or harassment without fear of reprisals.
3. Employers should ensure that there is regular training available on what bullying is and how it can be interpreted using clear and relevant examples.