It has been reported in several newspapers this week that a number of staff at the fashion retailer Asos have left the company after an independent report into allegations of workplace misconduct found no evidence of sexual harassment or that a ‘boys’ club’ existed at Asos. Although the report, published in 2021, found that there had been some ‘isolated instances’ of bullying and harassment which led to disciplinary action, it is alleged that bullying managers were not properly reprimanded and that their behaviour continued following publication of the report.
Coming in the wake of last month’s resignation of Dominic Raab as a government minister following an investigation into complaints made about his conduct, and more recent allegations in the press involving both the health secretary and Plaid Cymru, the concept of ‘bullying’ has once again been brought to the fore and raises a number of interesting issues.
Bullying itself has no statutory definition. The closest statutory concept is ‘harassment’ which is defined in the Equality Act 2010. But to be guilty of harassment, the treatment must be of a sexual nature or ‘related to’ a protected characteristic (race, sex, disability, age etc). Without a clear statutory claim, sufferers of bullying will merely have the right to (a) seek to have the issue resolved internally; and/or (b) resign and complain of constructive unfair dismissal at the employment tribunal – both being very daunting steps for a victim.
An allegation of bullying by one employee against another is clearly a potentially serious complaint and often means that resolution to the satisfaction of both the complainant and the alleged perpetrator can be unlikely via an internal process. If bullying is found to have occurred, then the employer will be bound to consider disciplinary action against the perpetrator. If the perpetrator is not dismissed, or if bullying is not found to have occurred, it may be very difficult for the complainant to work with the person they have accused. The stigma of the term ‘bullying’ is emotive and is generally only used by a complainant to describe behaviour that they feel has been seriously offensive, intimidating or undermining. It is not always a situation that is irrecoverable – careful mediation by a skilled HR team can sometimes achieve a resolution, but this will naturally require those involved to be flexible and open to it. It will take a lot of time and be very disruptive.
In Mr Raab’s case, he was not the employer or the line manager of the individuals who raised complaints. However, as a minister, he was subject to the ministerial code which makes clear that ministers should maintain ‘high standards of behaviour….’. The code also states that ministers should ‘be professional in all their dealings and treat all those with whom they come into contact with consideration and respect…harassing, bullying or other inappropriate or discriminating behaviour….will not be tolerated.’ In other words, ministers are expected to interact with civil servants in accordance with the norms of ‘workplace’ behaviour.
‘Bullying’, though, is not defined in the ministerial code (nor is it often defined in workplace grievance or disciplinary procedures), so for the purposes of his report into Mr Raab, Adam Tolley KC used the definition from the High Court case in 2021 which considered the approach taken by Boris Johnson in relation to allegations regarding the conduct of Priti Patel. In that case, bullying was said to be ‘(i) offensive, intimidating, malicious or insulting behaviour; or (ii) abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient’.
Interestingly, this is broadly the definition which ACAS uses to define workplace bullying. ACAS also makes clear that there does not have to be a pattern of conduct to constitute bullying – it can be a one off act. Mr Tolley KC also confirmed that (again following the High Court case referred to above) bullying can occur even if the perpetrator is unaware of or has no intention of engaging in conduct which is offensive, intimidating, malicious or insulting. Again, this is the same as in the statutory concept of harassment. It is the impact as viewed from the victim’s perspective which is important, but also with an eye on whether, objectively, it is reasonable for the conduct in question to have had the (offensive, intimidating, malicious or insulting) effect.
A reader of the report into the conduct of Mr Raab cannot reach their own conclusions into whether his behaviour came within the definition of bullying. Other than in a very limited way, the detail of the allegations made against Mr Raab were kept confidential to protect the identity of the complainants. Mr Tolley KC deftly avoids calling the behaviour ‘bullying’ or directly calling Mr Raab a ‘bully’ but nonetheless does reach the conclusion that certain of his behaviour was intimidating even though he did not intend it to be so, and in one instance it was also undermining and humiliating.
A few further interesting points from the report’s conclusions are (i) that there was no persuasive evidence that Mr Raab shouted at individuals, and he did not swear; (ii) there was no evidence that he lost control; (iii) on the evidence, Mr Tolley KC did not consider Mr Raab to be vindictive; (iv) Mr Raab had not been physically intimidating; and (v) no one warned Mr Raab that his behaviour might constitute bullying. As such, Mr Raab, in his resignation letter, confirmed that the findings had set the threshold for bullying so low as to set a dangerous precedent. Ultimately, though, he felt compelled to resign as he had said he would do so if bullying was the conclusion. Given the findings, however, if this had been an employment context, it is not necessarily the case that his conduct would have resulted in a summary dismissal. An employer will have to investigate, weigh up all the issues following a disciplinary hearing, including both parties’ conduct, determine whether the conduct is so serious to justify dismissal, consider alternatives to dismissal and any mitigating factors.
For employers dealing with bullying complaints by employees, the lessons really are to ensure there is a well drafted anti-harassment and bullying policy in the handbook, which defines both terms (using the statutory definition of harassment and the ACAS definition for bullying), and that employees are properly trained on those policies and what constitutes acceptable behaviour. Where complaints are made, conducting an independent investigation is key. Depending on the circumstances, an independent investigator from outside the organisation can prove to be an effective means of reaching an objective view of the complaints.
The employment team at Penningtons Manches Cooper has recent experience of conducting independent investigations and can provide workplace training on such issues for both management teams and employees.
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