The way in which we treat bullying at work has changed significantly this year. No more so than in law firms, where surveys have shown it to be a real issue.
The private member’s bill introduced into the House of Commons by Rachael Maskell MP on 11 July may well alter the landscape some more. The bill will not become law without government backing, but it is of interest because it provides a statutory definition for bullying at work and proposals that would allow standalone claims relating to workplace bullying to come before an employment tribunal. It also sets out a new Respect at Work Code. This would set out minimum standards for the work environment. The Equalities and Human Rights Commission would be given powers to investigate workplaces. If it found evidence of bullying, the commission would be able to take enforcement action. Now that they are in circulation, any or all of these elements might be adopted in future legislation by a government that is keen to act in this area.
This is a world away from where we were at the beginning of the year. First, we have struggled even to find a judicially accepted definition of bullying. This was highlighted by the investigator, Adam Tolley KC, in the Dominic Raab (pictured) case, when Tolley published his report into allegations of bullying by the then deputy prime minister and lord chancellor on 20 April.
Second, bringing a bullying case in the UK is generally only been possible if it is in the context of some other claim, most commonly discrimination based upon one or more of the protected characteristics of sex, race, disability, age, religion and/or belief and sexual orientation, or possibly via an unfair constructive dismissal claim. Other avenues such as a personal injury claim in the common law courts are available, as are claims under the Protection from Harassment Act 1997, but these are comparatively rare.
Given all the action to conquer other instances of bad behaviour in the workplace, it was always odd to see bullying as an outlier in this respect. For solicitors this all changed with the coming into force in April of rule changes to the SRA Codes of Conduct. These now place an express obligation on solicitors to treat colleagues fairly and with respect, and confirm the obligation not to bully, harass or discriminate. But this is in a regulatory context.
The bill moves the debate on further. If the substance of the bill were adopted by government in discrete or wider legislation, it would give victims of bullying in any workplace, including law firms (irrespective of whether such treatment is discriminatory on the grounds of one of the protected characteristics) the right to sue.
Whenever legislation has moved into new territory in an employment context, it almost invariably leads to an upsurge in claims, sometimes after a time gap while everyone gets used to the new environment and the available remedies. We have seen this many times in the past, in fields such as disability discrimination, age discrimination, sexual orientation and religious discrimination. We even saw it in relation to sex when sexual harassment came to be expressly covered by legislation, rather than just being seen to be a species of sex discrimination. Few would doubt that if the law on bullying changes, this is what we will see when there are instances of unchecked bullying in the future.
Would that change behaviours? Almost certainly. Take the example of age discrimination, an issue that has certainly affected law firms in the past. A Code of Practice was introduced in 1999 and, despite the good advice it provided, was widely ignored. Then along came a European Directive in 2000 which heralded the introduction of the then Age Discrimination Regulations. Age discrimination then ceased to become an issue that was ‘honoured more in the breach’. It began to be taken seriously. Law firms, perhaps unsurprisingly, featured strongly in the early cases.
There is plenty of guidance now in relation to bullying, the Acas paper Bullying at work being the most prominent. That carries advice to employers to ‘do all they can to try to prevent bullying happening and to take any bullying complaint seriously and look into it as soon as possible’. But, as with the government’s own guidance Workplace bullying and harassment, it has to make clear that ‘bullying itself is not against the law, but harassment (based on the protected characteristics) is’. That is precisely what could be changed.
There are bound to be those long embedded in law firm culture who complain that such organisations require high performance from staff. Therefore managers in charge must be given the power to deal with those who do not meet those standards, and guide them on the path to better and more appropriate performance. But as Tolley confirmed in relation to the Raab case, his findings were based ‘on the premise that it is necessary and appropriate to distinguish between “legitimate reasonable and constructive criticism” of an employee’s performance (on the one hand) and behaviour capable of being regarded as bullying (on the other)’.
This is a space to watch. And in any event, the new regime is a game-changer for law firms in this area of the law, even if the private member’s bill ultimately falls.
Richard Fox is a senior consultant and Sinead Minkah a trainee solicitor in the Employment team at Kingsley Napley
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