Allegations of workplace bullying are sadly all too common. Media reports this year of high-profile individuals such as the Duchess of Sussex and Priti Patel being accused of bullying are just a few examples.
Employers have duties to take reasonable care of the health and safety of their employees. These duties arise under common law, health and safety legislation and are also an implied term of the employment contract. It extends to mental as well as physical health and encompasses workplace bullying given the impact such behaviour can have on employees’ mental health and wellbeing.
It is important to remember that employers owe these duties to all their employees, including those accused of bullying. It goes without saying that victims of bullying should be protected. However, employers also need to protect those accused of bullying and be mindful of the difficulties they may face when such allegations are made, including the potential damage to their wellbeing, reputation and employment/career, particularly where it turns out that they were wrongly accused. Failing to do so could leave employers exposed to claims by the accused employee of, for example, unfair dismissal, breach of contract or discrimination.
Steps employers can take when dealing with allegations of bullying to ensure that they do not breach their obligations towards the accused employees include the following:
- Referring to their relevant internal policies and procedures (such as bullying and harassment, grievance and disciplinary policies) and ensuring they are complied with.
- Considering with the parties involved whether the matter can be resolved informally before instigating any formal process. For example, it may be possible to resolve the matter by having a private discussion with the parties without the need for formal action.
- If a formal process is instigated, carrying out a fair and reasonable investigation into the allegations promptly and giving the accused employee a proper opportunity to respond.
- Dealing with the matter sensitively, while keeping an open mind (not making any assumptions) and remaining impartial. Reassuring the accused that no conclusions have been reached during the course of any investigation.
- Carefully considering how the working relationship between the complainant and the accused will be managed while any process remains ongoing. Employers should avoid knee-jerk reactions like automatically suspending the accused employee or making other changes to their working arrangements (eg. transferring them to another department) as this could give the impression that the outcome of any investigation is predetermined. Instead, employers should consider whether any such action is reasonable, appropriate or necessary in the particular circumstances of the case.
- Considering whether it would be appropriate to offer workplace mediation with an independent third party to help repair the working relationship and resolve any conflicts, particularly in cases where an investigation does not result in a finding of bullying but there is clearly a damaged working relationship. Other alternatives which may be appropriate include changing the duties, work location or reporting lines of one or both parties (with their consent).
- Maintaining confidentiality throughout the matter (including the names of the parties involved and the details of the allegations) and keeping to a minimum the number of people involved, where possible, to reduce any negative impact on the parties concerned.
- Considering whether the bullying complaints have been made in good faith or could be false or even malicious (eg. retaliation by a disgruntled employee or a case of ‘upward bullying’). If a complaint is found to be made in bad faith, the employer will need to consider whether action ought to be taken against the complainant. However, it is important to bear in mind the potential exposure to complaints of whistleblowing or victimisation by the complainant if such action is taken against them.
- If a complaint of bullying is upheld, consider whether there are any mitigating factors and ensure that any formal action taken against the accused employee is proportionate and appropriate to the circumstances.
- Ensuring that the accused employee is provided with appropriate support during any process. For example, by providing access to confidential helplines and counselling or employee assistance programmes.
Dealing with workplace bullying can be very challenging for employers who will be keen to demonstrate a ‘zero-tolerance’ approach to such behaviour. However, such allegations are also immensely stressful for the accused employee and it is important for employers not to overlook their duties towards those individuals in order to avoid exposure to claims.
Bina Patel is a senior associate at Kingsley Napley