‘Robustness’ or bullying: when does firm
management cross the line?
As the Dominic Raab case has shown, allegations of
bullying can be highly subjective
Esther
Addley
Sat 22 Apr
2023 07.00 BST
Dominic
Raab, in his resignation statement, preferred to call it “direct critical
feedback” and the “pace, standards and challenge” that he brought to his
departments. His allies had previously defended him as someone who simply
“expects people to be on their brief and puts them on the spot”.
But in his
report, Adam Tolley KC found that at times the politician had gone beyond
merely demanding high standards of his staff, including instances in which he
was “intimidating” or acted in a way that was “unreasonably and persistently
aggressive”.
So where
does the line between “robustness” and bullying lie? While some conduct is very
obviously unacceptable, experts acknowledge it is not always easy to judge when
firm management crosses that line.
The
ministerial code, which governs how senior politicians must behave, says they
must “treat all those with whom they come into contact with consideration and
respect … Harassing, bullying or other inappropriate or discriminatory
behaviour … will not be tolerated.”
For the
purposes of his investigation, Tolley said he relied on a previous case that
found bullying could be defined as “offensive, intimidating, malicious or
insulting behaviour” or an abuse of power “in ways that undermine, humiliate,
denigate or injure the recipient”.
Notably,
Tolley reiterated a finding that behaviour could be classed as bullying even if
the person at fault did not mean to bully.
Normal
workplaces outside the political arena may not have a ministerial code, but
similar principles on behaviour apply, say experts.
“As a
manager, you can be robust about challenging poor work and set down reasonable
expectations,” says John Bowers KC, an experienced employment law barrister and
the principal of Brasenose College, Oxford. “But what you cannot do is be
malicious, humiliating, over the top or too personal.”
Who’s to
say what is “over the top”, though? Allegations of bullying can be highly
subjective, Bowers agrees, “and more importantly everyone’s susceptibility is
different, which partly depends on how senior the person is.”
Part of the
problem is that there is no specific legal definition of bullying. While the
government says examples of bullying can include spreading malicious rumours,
unfair treatment, regularly undermining someone or denying them training or
promotion opportunities, these are not in themselves against the law.
It doesn’t
need to be in person: communications by email, phone or letter can constitute
bullying behaviour as well as face-to-face interactions.
It is only
when this behaviour is related to protected characteristics such as a person’s
age, race, sex, religion, disability or sexual orientation that it is legally
classed as harassment, and falls under the Equality Act 2010.
“Bullying
is generally described as unwanted behaviour, but that’s a pretty loose
definition,” says Andrea London, a partner in the employment department at the
law firm Winckworth Sherwood. To qualify, “it has to be more than unwanted –
along the lines of being offensive, insulting or humiliating”.
Perhaps
someone has spread a malicious rumour about you, or keeps putting you down in
meetings. Your boss may continually give you a heavier workload than others in
your team. A colleague may have made humiliating or threatening comments or
photos on your social media posts. All are cited by Acas, the workplace
conciliation service, as potential examples of bullying.
It doesn’t
have to be your manager or someone more senior to you, Acas points out – a more
junior employee can be guilty of bullying their superior if they show ongoing
disrespect, refuse to carry out tasks or attempt to undermine their more senior
colleague.
Most
employers should have a bullying at work policy, notes London, which should
include clear guidance and lead to an established grievance procedure that
either seeks to resolve the situation informally or allows someone to make a
more formal complaint.
If that
doesn’t reach a resolution, a person who feels they have been bullied may have
no legal redress other than to resign and claim for unfair dismissal.
To
establish unfair dismissal, however, three tests have to be met, says London.
“There has to be a repudiatory breach of your contract” – one that goes to the
very heart of your employment terms – “you have to resign in response to that
breach, and you have to do that without undue delay”. That is “a very high bar
to have met”, she says.
In such a
case, employment tribunals will look at the conduct of the employer and how
seriously they have taken complaints about a staff member’s behaviour. “If the
employers have just batted it away and [said] there’s nothing here, this person
is a complainer and just doesn’t like being told what to do – tribunals don’t
like to hear that kind of behaviour from employers.”
If you feel
you are being bullied, keep a diary, London advises. “Bullying can be quite
insidious and you might not have any witnesses to the behaviour. If a bully is
being malicious, rather than it just being part of their personality, the
chances are that they will try to cover up what they’re doing.”
But if
you’re a straight-talking manager who just wants to push your team, how do you
avoid tipping over into accusations of bullying? “Communication is really key,”
she says. “As a manager, you might say: ‘Look, we’ve got to get to this
particular target, and I really need everybody to pull together. If you think
that I’m being short because my emails are just one-liners, don’t take that
personally – and if you have any concerns about anything, come and speak to me
about it.’
“A manager
who is aware of their potential foibles is probably in a much better position
than somebody who just thinks that they’re able to bulldoze people.”
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