Can a person whose behaviour constitutes bullying really be exonerated if there was “no intention” to bully, as the case of Priti Patel, UK Home Secrtary, suggests? The answer is fundamentally no – but overwhelmingly, yes, since workplace bullies throughout the country claim this defence in disciplinary proceedings – and usually successfully when their management is willing to give them the benefit of the doubt.
Can the bully be exonerated because she is working in a “challenging” job with people resistent to change, as Patel claimed? Again the answer is no. If you resort to bullying in these circumstances that would be bullying as a technique of management – and hence intentional; or you’ve simply lost it and should be moved from your post or at the very least get some retraining. But again the answer is “yes” since blaming the victims is always a good ploy for a manager facing a sympathetic disciplinary chair.
One hesitates to say that the Patel bullying scandal has set back the rights of employees making bullying allegations since the two excuses – “I didn’t mean it” and “they drove me to it” are standard tropes when such allegations are made. They have no basis in logic or law yet employers use them to find against staff making bullying claims or mitigate the offence to the extent that throwing in a bit of anger management is deemed sufficient to show something is being done.
The prime minister, Boris Johnson, is in the lucky position of having arbitrary powers under the Ministerial Code to throw out allegations however well founded. Employers have to show themselves acting more fairly and rationally in such cases and must have somewhat stricter codes of conduct, anti-bullying policies and disciplinary procedures. Nevertheless, whatever the rules, the complainant is at a disadvantage whenever an employer backs a bullying manager.
The problem is that there is no specific legislation on workplace bullying (unless it is deemed discriminatory) to hold employers to account if they show clear bias and use the standard excuses to get their managers of the hook. (The law on harassment, designed to deal with anti-social behaviour, may offer some legal recourse in theory, but that’s a complex area – see below).
There is guidance on what bullying is (see Acas guide appended below) and law on procedural issues of how bullying should be dealt with by employers, including the sort of thought processes they should go through to come to their disciplinary decisions. And this law makes quite clear: saying “I didn’t intend to bully” or “I didn’t realise the effect it was having” is no defence. So what are the procedural rules – and how do employers get round them?
Strategy 1: “I can’t decide”
One way a biased employer might give the benefit of the doubt to a bully is simply not to come to a view on the facts of the case. This may purport to be even-handed, but it gives the bully a huge advantage. All sorts of accusations may be flying around, but a disciplinary panel that just refuses to come down on one side or another on the basic factual issues is failing in its duty. The investigator or disciplinary chair should not use words like “We were unable to reach a definitive conclusion” or “There was no corroborating evidence so we cannot assess the truth of this allegation”. They must come to a view on the facts, one way or another.
There’s a blindingly obvious reason for this: to refuse to come to a conclusion on the facts is to heavily favour the alleged bully. By simply denying the accusations, the bully is in the clear. By appearing to be even-handed, the panel has given the bully a get out of jail free card.
Instead the disciplinary investigator or chair needs to come down on one side or the other on what actually happened. They don’t have to judge the facts “beyond reasonable doubt” – it’s not a court of law, no one is going to prison. The civil standard of proof is sufficient, so they should assess the facts objectively and in good faith and come to a reasonable decision on those facts “on a balance of probabilities”.
So in thecase of Bracebridge Engineering Ltd v Darby  IRLR 3 two employees denied a sexual attack on another so the company dropped the case. The victim won her case at tribunal “by reason of the employers’ failure to treat her allegation of sexual harassment seriously”.
Clearly, given the limited protection the law offers victims of bullying, an employer is more fearful of sacking someone for bullying who then takes the company to court than mistakenly or intentionally being unfair to the complainant. But if the person sacked for bullying does take legal action, a court is unlikely to overturn the disciplinary panel’s judgment as long as the procedures were robust and the decision was reasonable and arrived at in good faith.
Strategy 2: “She didn’t mean it”
If the facts of the case can’t be avoided, employers are often ready to accept the Priti Patel defence that the bullying wasn’t intentional. In fact a disciplinary panel should ignore this plea except as possible mitigation once bullying has been established. The victim is the judge of whether the words or behaviour are distressing or stressful. As management adviser Simon Jones says:
“The Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so ‘I didn’t mean it’ is not an excuse for unacceptable behaviour.”
So do you just accept what the alleged victim says? No. There is a two-stage process to decide, once the facts are established, whether they constitute bullying.
First look at the words and behaviour from an objective perspective. This means, setting aside any other issues, are they the sort of words or behaviour that would clearly cause distress or a sense of being harassed?
The objective test is based on how a reasonable person would view the alleged actions: “conduct which the perpetrator knows or ought to know amounts to harassment” – May LJ in Majrowski v Guy’s and St Thomas’s NHS Trust  EWCA Civ 251. (Note: This is a rare and leading case on workplace harassment using the Protection from Harassment Act 1997. A good employer would be wise to apply it to bullying cases brought before a disciplinary forum.)
If the words and behaviour are objectively likely to be distrssing or harassing, then assess the subjective evidence of the complainant: did s/he feel distress as a result of the words or behaviour? The subjective evidence of the alleged bully is irrelevant. So motivation at this stage should be ignored though might be mitigating factors when it comes to a penalty.
If the objective assessment is that such conduct would cause distress and the worker subjected to it complains that it did cause distress, then there should be a finding that bullying occurred.
Strategy 3: Weasel words in the final report
The disciplinary chair seeking to suppress the notion that a manager is a bully will use the report to play down the offences of the alleged bully – presumably in the way Johnson is said to have asked his independent advisor on ministerial standards, Sir Alex Allan, to make the Patel report “more palateable”.
So look out for weasel words: saying “the actions could be interpreted as intimidating” is a way of skirting round the issue. Similarly with phrases suggesting the accused manager “had a lack of awareness of the effect” or “misjudged” her comments/behaviour. Blaming the victim is another technique. They might be “unsupportive of the manager” or have a poor pre-existing ethos that the manager was challenging. She might do this with “robustness” or “forceful expression”. “Inappropriate behaviour” is a weasel word followed by “rather than bullying” that guarantees the perpetrator will get off with a slap on the wrist.
An extract from what we have of the Allan report is published below showing wording that seems to very much give Patel the benefit of the doubt (assuming it has not been wrested wholly out of context).
Strategy 4: The “banter” excuse
In this day and age you might think employers would be ashamed to include the word “banter” as mitigation in disciplinary reports. But, no, it’s going strong. There is a line of legal cases that accepts the possibility of the”banter excuse”, but these are misused or misunderstood in disciplinary cases to suggest that an “atmosphere of banter” can mitigate what otherwise would be bullying. The manager will often find some less than respectful joke or comeback from a more junior staff member to show the existence of a bantering culture that suggests what looked like harassment or bullying by a boss was just cameraderie gone wrong. This position has no justification in law when the issue is bullying and harassment or discriminatory behaviour.
The legal cases in which the “banter excuse” has been accepted have instead been about a much narrower situation where actual banter (not bullying) simply became tiresome to an individual. Courts have found that those who accepted such behaviour or joined in with it initially could not at a later stage turn round and complain about it – even if the “jokes” involved language that was on the face of it extremely discriminatory.
Take the case of Loosley v Moulton & Anor  UKEAT 0468_04_1703 for example, where Mrs Loosley unfortunately said at some point she would not mind being the madam of a brothel. A colleague, Mr Moulton would rather frequently make comments of the “How’s business” kind when he saw her standing in the street. Because Mrs Loosley played along with it for a time and did not complain, she lost her case against Moulton and their employer when it eventually became too much for her.
But that’s as far as the banter excuse goes. It does not apply to words or behaviour that are objectively offensive and cause offence. They are not mitigated by a “background of banter” in the workplace.
Since there is no statutory definition of workplace bullying (outside harassment and discrimination legislation) there is actually no direct legal remedy for it. As Acas says:
“Unless bullying amounts to conduct defined as harassment in the Equality Act 2010 it is not
possible to make a complaint to an Employment Tribunal about it.”
Basically all one can do is what the Home Office permanent secretary Sir Philip Rutnam did in the Patel case: resign and claim constructive dismissal at a tribunal. This means that you are claiming the behaviour constituted a repudiatory breach of contract on the part of the employer amounting to a breach in the implied term of trust and confidence between employer and employee:
“Constructive dismissal is when you’re forced to leave your job against your will because of your employer’s conduct. The reasons you leave your job must be serious, for example, [the employer] … let other employees harass or bully you.” (Government website)
There are better protections for harassment that has a discriminatory basis in the Equality Act 2010 (and employers are consequently likely to take discriminatory conduct more seriously), but for pure bullying the position is rather unsatisfactory. That the victims lose their jobs while the alleged bullying manager is supported in her position is not at all unusual and particularly galling for victims.
The passing of the Protection from Harassment Act in 1997 has been as opening the wayto craft protection from workplace harassment out of a piece of legislation intended to deal with stalking, racial harassment and anti-social behaviour. But the cost and complexities of using this legislation probably put it beyond the average worker, even if supported by a union, whose legal coverage generally only extends to tribunal cases, not High Court civil disputes.
One can only advise that, where there is a union agreement covering disciplinary matters, the union should try to ensure that it includes principles that can be drawn from the above: that disciplinary panels must come to a decision on disputed facts on a balance of probabilities; and that the two stage process be used to establish if the conduct complained of is bullying: is it objectively harassing or distressing and, subjectively, have the alleged victims said it is harassing and distressing.
The author of this piece has studied employment law and has experience of disciplinary hearings but is not a qualified lawyer. None of the posts constitutes legal advice. Remember that any claim to an employment tribunal, including for onstructive dismissal, must be made within a month minus a day after the last act complained of. If you have been harassed for sexual, racial, disability and other recognised discriminatory reasons, a different regime of law applise, not dealt with here. Seek union help or legal advice if you feel you have been bullied or discriminated against at work.
Note: Priti Patel has consistently denied the allegations regarding which she issued an “unreserved apology” on 21 November.
A note on the Harassment Act and Majrowski
The 1997 Protection from Harassment Act has criminal and civil provisions, so it can be used to sue people in the civil courts for harassment as well as punish them through the criminal justice system.
Section 3 of the 1997 Act allows for a person to take civil proceedings in respect of harassment. This includes “apprehended” harassment as well as actual harassment. It would be alleged perpetrator to prove that his conduct was reasonable in the circumstances.
Section 3(2) provides for damages to be available for (among other things) ‘any anxiety caused by the harassment and any financial loss resulting from the harassment’.
(Commons briefing 9 June 2017)
The employment lawyer Gemma Hay noted in Personnel Today:
“The Protection from Harassment Act 1997 prohibits the pursuit of a “course of conduct which amounts to harassment of another”. Harassment is conduct that causes alarm or distress, and a course of conduct must involve such conduct on at least two occasions. The Act was originally introduced to deter stalkers but it also applies to workplace harassment.
The landmark decision where the Act was applied in an employment context was Majrowski v Guy’s and St Thomas’s NHS Trust in 2006. Mr Majrowski claimed that he had been harassed at work by his line manager and the House of Lords ruled that the employer was vicariously liable for the behaviour of the manager who harassed him.
Following Majrowski, employees can bring harassment claims where they have suffered alarm, anxiety or distress, even where there is no allegation of discrimination or personal injury.”
In the Majrowski case in the Court of Appeal Lord Justice May said:
“The purpose [of the Act] plainly was to provide criminal and civil remedies against harassment. I am unable to discern a purpose that this should not extend to the possibility of an employer being vicariously liable for harassment committed by an employee upon the principles as to vicarious liability which I have identified. On the contrary, I can see nothing difficult in principle with a parliamentary purpose, in legislating to create the statutory tort of harassment, that, if there is a sufficiently close connection between the nature of the employment and the harassment such that looking at the matter in the round it would be just and reasonable to hold the employer vicariously liable, the employer should indeed be liable.”
So the judge is saying that, although there was nothing explicit in the Act that said it should be used in employment situations, there was nothing barring it from being used in that way. And it follows that employers can be liable (vicariously) for harassment perpetrated by their staff.
However, the bar regarding seriousness of the conduct is set high – “oppressive and unacceptable”. In the House of Lords (now Supreme Court) Lord Nicholls said:
“Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2 [of the Act].” (at para 30)
So the standard of proof is civil (balance of probabilities) but the seriousness of the harassment must be such that would actually warrant an action under criminal law as set out in the Act. This has perhaps made it rather daunting to be generally used in the workplace setting, albeit that the conduct of which Priti Patel was accused would probably attract the attention of law enforcement officers if it had occurred out in the street; this raises the question: why should an employment relationship between alleged offender and alleged victim allow the former to get off scot free? Perhaps the Secretary of State responsible for law and order could tell us).
This is defined thus by Nicholls:
“Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer’s business. The time-honoured phrase is ‘while acting in the course of his employment’. It is thus a form of secondary liability. The primary liability is that of the employee who committed the wrong.” (at para 7)
ACAS note on what may constitute bullying
Here is a definition in the Acas guide, which should be adhered to by employers including being available in handbooks or policies for workers to view. Bullying is:
“Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”.
It isn’t all shouting and swearing, as alleged against Priti Patel. A list of subtler forms of bullying is provided (see at the end of this piece); they include denigrating work, threatening people’s jobs or overworking them.
Behaviour that is considered bullying by one person may be considered firm management by another. Most people will agree on extreme cases of bullying and harassment but it is sometimes the ‘grey’ areas that cause most problems. It is good practice for employers to give examples of what is unacceptable behaviour in their organisation and this may include:
- spreading malicious rumours, or insulting someone by word or behaviour
- copying memos that are critical about someone to others who do not need to know
- ridiculing or demeaning someone – picking on them or setting them up to fail
- exclusion or victimisation
- unfair treatment
- overbearing supervision or other misuse of power or position
- unwelcome sexual advances – touching, standing too close, display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected
- making threats or comments about job security without foundation
- deliberately undermining a competent worker by overloading and constant criticism
- preventing individuals progressing by intentionally blocking promotion or training opportunities.
Bullying and harassment is not necessarily face to face, it may occur through written communications, visual images (for example pictures of a sexual nature or embarrassing photographs of colleagues), email, phone, and automatic supervision methods – such as computer recording of downtime from work, or recording of telephone conversations – if these are not universally applied to all workers.
Part of the summation of the Allan report that was published.
The Civil Service itself needs to reflect on its role during this period. The Home Office was not as flexible as it could have been in responding to the Home Secretary’s requests and direction.
She has – legitimately – not always felt supported by the department.
In addition, no feedback was given to the Home Secretary of the impact of her behaviour, which meant she was unaware of issues that she could otherwise have addressed.
My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.
Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.
To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context.
There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.
The high pressure and demands of the role, in the Home Office, coupled with the need for more supportive leadership from top of the department has clearly been a contributory factor.
In particular, I note the finding of different and more positive behaviour since these issues were raised with her.