7 November 2023

The UK’s annual Anti-Bullying Week runs from 13 to 17 November 2023. This is a large-scale public education campaign coordinated by the Anti-Bullying Alliance which receives widespread press coverage. It has often been referenced on social media by celebrities, influencers and MPs. While the focus of the campaign is on bullying in schools (more than 80% of UK schools marked Anti-Bullying Week in 2022), small bullies inevitably grow up and embark on careers, and bullying in the workplace has been hitting the headlines more frequently in recent months. (The Anti-Bullying Alliance has a useful explanation of the difference between banter and bullying, which applies to all ages.)

Now is a good time for employers to consider how they can effectively respond to allegations of bullying at work and protect themselves from claims. The cost of bullying is more than simply the cost of defending litigation: bullying at work can affect an employee’s performance and damage their mental health, sometimes resulting in resignation or long periods of absence, and will also damage a company’s culture, possibly leading to further loss of personnel or even, as in some notable recent cases, reputational damage.

While there is no law specifically against bullying, it can lead to claims for personal injury and tribunal claims for constructive unfair dismissal. If bullying meets the definition of harassment under the Equality Act 2010 (unwanted conduct relating to a protected characteristic (such as race, religion, or sex) which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them) it will constitute unlawful discrimination. Employers may be liable for an employee’s discriminatory bullying of a colleague. They may also be liable for damages arising from their employee’s harassment of another person under the Protection from Harassment Act 1997.

In this article, we highlight the key elements of good practice when responding to an allegation of bullying at work.

Supporting employees

It is crucial to support employees who allege that they have been bullied. Employees should be treated sensitively and should be reassured that their complaint is being taken seriously and that the allegations will be kept confidential.

An employee making a complaint of discrimination will usually have legal protection from victimisation. Even if there is no potentially discriminatory element to a bullying allegation, employers should encourage a culture in which employees feel supported and know they will not suffer adverse consequences from making allegations in good faith.

Depending on the nature of the allegation, the employee may prefer to speak to an HR manager or colleague of the same gender.

Check your policies

Check your policies to ensure the appropriate steps are followed within the timeframe specified. Where an investigation is going to be carried out, the employee should be made aware of the steps involved and the likely timescale. Any delays should be communicated to the employee.

Offering support through referral to an employee assistance programme or counselling may be helpful. This applies both to the employee alleging bullying and to the employee who is the subject of the allegations.

Should we separate the employees?

If the allegations are serious and the employees work in the same area or team, the employer should consider whether they should be separated or whether work responsibilities or reporting lines can be changed. This is to minimize contact – and any possible escalation – between the alleged perpetrator and the individual alleging bullying while an investigation is carried out.

As far as possible, care should be taken not to penalize either individual. If there is no obvious solution, it is advisable to seek legal advice.

Should we suspend the alleged perpetrator?

Suspending the alleged perpetrator should only be done as a last resort, and suspension should not be automatic. Any suspension should be of the minimum possible duration; an unnecessarily long suspension could breach the term of trust and confidence, allowing the employee to resign and claim constructive unfair dismissal. A long suspension may well also affect the well-being of the suspended employee.

We recommend keeping a record of the decision-making process.

Investigating allegations of bullying

Employers should consider whether the issues can be resolved informally, as required by the Acas code of practice on disciplinary and grievance procedures. Options for resolving the situation informally can be discussed with the employee making the allegations. Often, however, allegations of bullying will require a formal investigation.

Employers should investigate promptly but need also to ensure that any investigation is reasonably thorough. The investigator can be an HR professional or a senior manager. In some cases, it may be necessary to appoint an external investigator if there are no suitable individuals available, for instance because an otherwise suitable manager is friendly with the alleged perpetrator.

Very often, there will be different perspectives on the situation. The investigator should embark on the investigation with an open mind and look for evidence that can help them reach reasoned findings. Both parties should be asked to suggest witnesses and what evidence each witness could provide. Along with speaking to witnesses, depending on the allegations, the investigator may need to review emails, online chats, records of meetings, social media, and CCTV footage.

The investigation must be kept confidential, and this must be explained to any witnesses who are interviewed. Both the alleged victim and the alleged perpetrator must be informed of any significant delays.

Actions following an investigation

Depending on your policy, another manager may need to meet the employee making the complaint and review all the evidence before reaching a decision. The complainant should be offered a right of appeal if their allegations are not accepted.

Where you find that bullying did occur, the next step may be to deal with the subject of the complaint under your disciplinary policy. This could result in a warning or in dismissal.

Protecting your business

Employers need to have strong and up-to-date policies on equality, diversity, and inclusion and to regularly train their employees to bring these into practice. Along with creating a positive, fair and safe working environment, this can help employers defend harassment claims under the Equality Act 2010. These steps can also help establish the statutory defence of having taken reasonable steps to prevent harassment.

How we can help

We can help you deal with any allegations of bullying. For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.