by
Ryan Clement
There has been much media interest on the subject of bullying recently. The reason for that is not the purpose of this blog. The purpose of this piece is to explain what Bullying and Harassment are.
A bully is, “a person who habitually seeks to harm or intimidate those whom they perceive as vulnerable,” and the act of bullying is to, “habitually intimidate, abuse, harass…or to coerce or compel,” by bullying. OED.
Not unnaturally, Bullying and Harassment would normally fall under the same chapter/heading in the Employee/Staff Handbook. Bullying is, effectively, the unwanted conduct of the acts of bullying by the target of such acts, whom I shall now call the Victim, by the person conducting or responsible for such unwanted acts, whom I shall now call the Bully.
Obviously, acts of bullying can take innumerable forms. It can be from the most subtle to the most obvious of acts/conducts. What is certain, however, is what is an unwanted conduct for one person may not necessarily be so for another. Therefore, what amounts to bullying is subjective to a large extent, and that subjective decision is that of the Victim (their perception) not of the Bully. In other words, one hat of interaction does not fit all. Each colleague is different and unique, and is to be treated differently and uniquely.
That said, it would be fair to say that, taking everything into account – the context/the circumstances of the matter; the Victim’s hierarchical position relative to the Bully’s in the organisation (note that a Victim who is higher in an organisation’s hierarchy can also be bullied by a Bully on the same or lower hierarchical level); or the Victim’s vulnerability, temperament, emotions etc. (the list goes on) – there is an element of objectivity, but only to the extent of determining whether the conduct in question could reasonably amount to bullying.
Non-exhaustive examples of bullying are the Victim consistently being undermined; continually given or being overburdened with more work than their colleagues; ignoring them or putting them down in meetings etc; shouting at them, especially in front of their colleagues etc. Again, the list goes on.
Generally speaking, harassment is a statutory concept (unlike bullying) of s.26 Equality Act 2010 that is similar to bullying but must relate to one or more Protected Characteristics such as age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation.
If you feel you have been bullied or harassed you may raise a grievance on those grounds. Now, this is where the two run in parallel but only to a point. An employee can present a claim of harassment to the employment tribunal whilst still employed by their employer. However, as bullying is not a standalone claim a bullied employee cannot do the same in respect of bullying alone. If an employee has been bullied they can resign and claim constructive wrongful dismissal. However, with exceptions, they can also only bring a claim for constructive unfair dismissal if they have worked continuously for their employer for a stipulated period, which is currently 2 years. It should be noted that an harassed employee can also resign because of their harassment and bring a claim. For completion, a worker who is not an employee under a contract of employment may also bring a claim for harassment, but that is for another blog on another day.
A word of caution. This area of employment law is very complex and, as with all potential legal claims, specific legal advice ought to be sought from a legal specialist before any material steps are taken.
Ryan Clement, LLM, BA, BSc, Barrister
https://www.youtube.com/@RyanClement1
Copyright © Ryan Clement 2023
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