The news that home secretary Priti Patel was found to have breached ministerial code for bullying in the workplace and kept her job has drawn a lot of scrutiny. And the fact that it happened during Anti-Bullying Week, where this year’s theme was ‘united against bullying’, made for some striking headlines.
President Obama famously said that “progress isn’t always a straight line or a smooth path”. Certainly, notwithstanding recent events in Westminster, and in part following the emergence of the #MeToo movement, we are seeing an increased and pervasive raising awareness of individual’s employment rights and a willingness to enforce them. This is prompting employers to take ownership of and be accountable for what takes place on their watch in the broadest sense. Headlines such as this may – ironically in some senses – only serve to shine the spotlight on issues like workplace bullying and inappropriate management.
HR knows that bullying complaints can be the most difficult and personal issues that may land on their desk, often coupled with cultural and internal tensions that may otherwise inhibit an effective workplace investigation taking place. The very word ‘bullying’ is emotionally loaded.
Here are a few (non-exhaustive) areas HR should be aware of if an allegation of workplace bullying is made:
Focus on effect, not motive
One of the lessons one might take away from the government’s handling of the home secretary’s investigation is that intention is the all-important factor. Patel apologised for her behaviour and said that it was never her intention to cause upset to anyone.
This, of course, has no legal weight when considering if an employer is vicariously liable for breaching the employee’s contract by destroying the trust and confidence in the employment relationship, and/or whether there has been harassing conduct in connection with a protected characteristic under the Equality Act 2010. In both cases, it is generally the effect that the behaviour has on the complainant that is relevant.
2021 could be fertile ground for grievances
Given how reactive employers have had to be as a result of Covid-19, this year has seen many employees working remotely and without the level of supervision that they might expect had they been in the office. One of the ramifications of a more disparate workforce is the scope to feel more disconnected from your colleagues. This can, in turn, allow for allegations of bullying to take root where healthy personal relationships are weaker.
HR should be aware of the possibility of staff showing symptoms of being harassed or bullied by line managers or colleagues, which can involve a lack of understanding, unconscious biases and poor communication skills. Bullying can manifest in differing forms, even when done remotely. Employers must therefore be mindful that micro-managing behaviours, deliberately omitting someone from email chains or calendar invites, or insisting that the employee has their video on for a Zoom call even after they have asked not to, can all be indicative of a larger issue at play.
Mental health support
Bullying in many workplaces before the advent of #MeToo may have previously been tolerated to a much greater extent, especially where it related to line manager behaviour. But recently there have been some very public examples of shifts in organisation-wide attitudes from the top down to drive positive behaviour, resulting in senior leaders losing their jobs instead of being afforded protection at the complainant’s expense.
Having taken steps to prevent problem behaviours from continuing, the lasting impact of workplace bullying on the mental health and wellbeing of those it affects also needs to be addressed. Businesses are right to recognise this as a cause for concern, and should take meaningful steps to mitigate this to provide a safe working environment and to be seen as an employer of choice.
Anyone who has been bullied will relate to it being an emotionally traumatic experience. If left unchecked, it is a stress that can increase feelings of loneliness and isolation, which are factors for mental ill-health. Employees should be given mental health first aid and signposted to appropriate help, whether internally, via an employer’s employee assistance programme, or through external professional help to aid the individual’s road to recovery.
Daniel Stander is an employment lawyer at Vedder Price