Is the law working for workplace bullying?
Guest Blogger: Jessica Rowson, Head of Psychiatric Injury at Oakwood Solicitors
Most people would be surprised to find that where issues of workplace bullying are concerned, there is somewhat of an uncertain gap in the law which can often cause confusion as to what level of legal protection and recourse they may have.
In England and Wales, we have a number of laws and regulations to protect employees at work from unsafe working environments and discriminatory treatment but when it comes to bullying at work with no particular motive to someone’s race or gender etc, where does any legal protection come from?
ACAS guidance is commonly used by employment lawyers as a reference point to hold employers responsible. Whilst this is not directly binding, the Judiciary do refer and make use of their guidance which making decisions on cases.
ACAS says: “[Bullying is] offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”
But the ACAS guidance is only relevant to claims made in the Tribunal – ACAS also says: “Unless bullying amounts to conduct defined as harassment in the Equality Act 2010, i.e. if it is not related to a protected characteristic, it is not possible to make a complaint to an Employment Tribunal about it.
So what about workplace stress caused by non-discriminatory bullying behaviour which sits outside of the jurisdiction of the Tribunal? These would fall into the remit of the County Court and, if certain criteria is met, may have ground for a civil claim for workplace stress.
There is no claim for bullying in itself as a legal action – there has to be some sort of failure by the employer to protect an employee for the behaviour identified in the complaint. There also has to be some sort of financial loss which can be compensated and/or an impact to someone’s health (often to their mental health) which is significant to meet the necessary criteria for a personal injury compensation claim.
When deciding on civil case to do with workplace bullying, the County Court looks at caselaw for defining law. A few examples of definitions the Judges
have come to are as follows:
“It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers.” (Waters v Commissioner of Police  4 All ER 934.)
“The criterion for what does or does not amount to bullying in any given circumstances is not to be judged solely by the subjective perception of the victim himself, but involves an objective assessment of the observed behaviour taken in conjunction with any apparent vulnerability in the target of the behaviour complained of.”(H v Isle of Wight Council  2 WLUK 691.)
In the case of Majrowski v Guys and St Thomas’s NHS Trust  1 AC., the Judge stated that the Courts have to distinguish between conduct which is “unattractive, even unreasonable, and conduct which is oppressive and unacceptable“. All sorts of conduct may amount to harassment and “a great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”.
As can be noted, the Judges appear to be keen not to set down any one such definition and allow the continued flexibility of judicial interpretation for each Judge to determine their own definition on a case-by-case basis.
There is an example of the ACAS definition however being used in the County Court by Sir Robert Nelson who, giving the judgment in Daniel v Secretary of State for the Department of Health  EWHC 2578, concluded: “taking into account the various definitions and dicta upon bullying and by analogy to harassment, I am satisfied that for bullying to be established the conduct must be genuinely offensive and unacceptable, examples of which may be intimidating, malicious or insulting behaviour intended to undermine, humiliate or denigrate”.
So, there is a view to say that the ACAS definition is already there and being utilised in the Tribunals and County Courts there so is a further definition required from a legal perspective? To address this, it’s useful to consider whether the law as it stands goes far enough.
Bullying by its very nature is often subjective and can be defined from person to person very differently. Due to the nature of bullying being subjective rather than objective, it creates a problem to the Courts in knowing where to draw a line at what conduct is not bullying versus what ought to be found as bullying.
The Courts and Tribunals are already over-run and under-resourced – to open the gates to a new set of cases would arguably result in a further pressure on access to justice.
On the other hand, the causes of action arising from non-discriminatory bullying are very limited and unless someone has sadly suffered with their mental health as a consequence to the extent that they have been diagnosed with a recognised psychiatric injury, there is no remedy for compensation.
In claims for discrimination where there is no such significant impact to someone’s health, there is a remedy called ‘injury to feelings’ but this does not exist for non-discriminatory bullying. This results in a situation where a bullied employee has no remedy at all for being subjected to potentially quite abusive and unacceptable workplace treatment.
From helping clients in practice, clarity to the law in this area would help employees better understand their legal rights and would also help employers understand how they can support their employees. At present, the lack of clarity presents confusion and a lack of regulatory framework resulting in a lack of adequate protection from bullying throughout workplace environments.
Jessica Rowson is a specialist lawyer in the niche legal field of stress at work cases with a particular interest in cases involving matters of workplace bullying, and a member of the Conduct Change Advisory Board. She hopes that by supporting her clients in taking legal action against their employers that companies will become better educated and informed on the importance of good mental health in the workplace and avoid the likelihood of future workplace disputes from arising.
Conduct Change was founded in 2019 with the purpose of changing behaviour in workplaces to create more courageous and compassionate approaches to prevent workplace bullying. The founder, Nicki Eyre, has been through her own workplace bullying experience during her career and recognises the scale of the problem at both an organisational and individual level.
We recognise that workplace bullying is a sensitive topic for many businesses. If you are concerned that you may have a bullying issue in your workplace, or just want help in opening up the conversations, we are here to advise. We offer a free and confidential discussion to understand the issues and explain what options are available for you.
t 07921 264920