UK laws on workplace bullying are outdated and ineffective, leaving many victims without proper recourse. Thomas Beale highlights why bespoke legislation is crucial for real protection
Reports of unacceptable workplace behaviour have gained significant attention in the media in recent years, indicating that issues such as workplace bullying have become worryingly commonplace. Such conduct can have detrimental effects on the psychological wellbeing of employees, and it is imperative that victims are aware of the legal avenues that are available to them when seeking justice.
With limited options, victims may find they are left with no choice but to resign from their role and pursue constructive dismissal in the employment tribunal
There is currently no distinct statutory definition of workplace bullying in the United Kingdom. As a result, victims may seek recourse under the Equality Act 2010 or the Protection from Harassment Act 1997. Unfortunately, these legal instruments do not adequately address workplace bullying, leaving substantial gaps in the law that hinder victims’ ability to pursue justice.
Workplace bullying under current legislation
For individuals who have experienced bullying in the workplace and have decided to pursue legal action, the employment tribunal serves as a common starting point. Such claims are often brought under the Equality Act 2010, which prohibits conduct such as harassment and discrimination.
According to the act, harassment is described as unwanted conduct that violates a person’s dignity, or creates “an intimidating, hostile, degrading, humiliating or offensive environment”.
While workplace bullying may fall under the act’s remit, victims should be mindful of certain stipulations. To bring a successful claim under the act, the conduct complained of must be “related to a relevant protected characteristic”, such as religion, sexual orientation or race. By limiting the scope in this way, many cases of workplace bullying will be excluded from the act, making it necessary for victims to explore alternative legal avenues.
Consequently, victims may consider turning to the civil courts and the Protection from Harassment Act 1997 for redress. The act was initially introduced as a measure to prohibit stalking, and was later expanded to encompass other forms of antisocial behaviour, such as harassment.
What constitutes harassment is not clearly defined in the act; however, it makes reference to behaviour that causes alarm or distress. As such, it is necessary to consider the relevant caselaw for further clarification.
The court has determined that ‘oppressive and unacceptable’ conduct, which is “calculated in an objective sense to cause alarm or distress” will amount to harassment. However, the conduct must also be “of such gravity as to justify the sanctions of the criminal law”, setting a notoriously high threshold. It can be difficult for victims of workplace bullying to demonstrate that they have suffered harassment of such gravity, and therefore, they are often unlikely to bring a successful claim under the act.
With limited options, victims may find they are left with no choice but to resign from their role and pursue constructive dismissal in the employment tribunal. This legal avenue poses financial risk, as claimants may find themselves facing unemployment whilst undergoing costly legal proceedings.
Inspiration from Dutch legislation
Evidently, the existing UK legislation does not adequately address the broad issue of workplace bullying, and it leaves significant gaps for victims seeking restitution in the law.
Looking to mainland Europe, it is clear that certain nations, such as the Netherlands, have much more advanced legislation on this issue. The Dutch Working Conditions Act (Arbowet) traditionally considered bullying to fall under the definition of psychosocial workload; however, the act was amended in 2007 to explicitly address such conduct.
The act now defines bullying as structured, repeated and intimidating behaviour that is aimed at an employee who is unable to defend themseves.
By distinguishing bullying from other forms of incivility, such as harassment or discrimination, Arbowet avoids limiting its scope, which in turn allows more victims to seek restitution. The amendments to Arbowet demonstrate the importance of further advancement in UK legislation, to avoid undermining victims’ ability to seek justice.
Hopeful developments in legislation
In July 2023, Labour MP Rachael Maskell introduced the Bullying and Respect at Work Bill, marking a positive step forward. The bill aims to define bullying in statute and establish a Respect at Work Code, which would set minimum standards for safe and respectful working environments and delegate powers to the Equalities and Human Rights Commission to investigate workplaces that may be in breach.
Unfortunately, when the 2022-2023 Parliamentary session was adjourned, the bill was placed on pause. Although the bill has yet to be picked up in a subsequent session, there is hope that it will be reconsidered. If passed, the bill would go far to advance efforts in protecting employee rights.
Evidently, a statutory definition of workplace bullying is long overdue. We are advocating for change of law through our Manifesto for Injured People, in which we have proposed policy ideas that we believe are essential for ensuring the wellbeing of individuals in our society.
As part of our manifesto, we are campaigning for the establishment of a legal definition of workplace bullying to enhance the protection of workers’ rights.
Thomas Beale is Partner at Bolt Burdon Kemp LLP