The number of cases heard by an employment tribunal involving allegations of workplace bullying had increased 44 percent over the 12 months preceding March 2022, according to a July report by the London-based boutique employment law firm Fox & Partners. The firm’s research showed an increase from 581 to 835 in the number of bullying cases heard during the sample period.
Did the increase in bullying cases signal an actual increase in workplace bullying or simply an increase in the number of litigated claims? It’s probably impossible to know in the absence of broad, longitudinal research, but Arran Heal, managing director of CMP Solutions, thinks it’s likely both.
“It isn’t surprising,” said Heal, whose London-based firm has 30 years of experience helping businesses manage conflict at work. He ticked off a list of circumstances that—amplified by social media—might well have boosted employee activism: #MeToo, the Black Lives Matter movement, equality legislation, a cost-of-living crisis and a nation split by Brexit. “As if that that wasn’t enough, then we throw in COVID,” he added.
The pandemic has exposed tensions associated with widespread hybrid and at-home work, created a loss of control among line management, stimulated a lot of restructuring, and heightened mental health issues in the workplace, he said. “It’s pretty tough out there. All that volatility in the workplace is a recipe for inappropriate behaviors to become more commonplace.
“Employees understand much more clearly their rights—what is acceptable and what is not,” Heal continued. That, in turn, motivates them to act, and “they have more confidence to do so because they see more employees being successful.”
Bullying by Other Names
“Bullying is a commonly used word, but it is not legally useful,” said Ivor Adair, an attorney at Fox & Partners. Bullying per se is not unlawful in the U.K.
The Advisory, Conciliation and Arbitration Service (ACAS), an independent government body that promotes strong industrial relations practice, describes bullying as “unwanted behavior from a person or group that is either offensive, intimidating, malicious or insulting, an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.” An ACAS early conciliation certificate is prerequisite to a tribunal claim.
Bullying allegations can support an employment tribunal claim if they are related to protected characteristics—age, disability, gender reassignment, race, religion or belief, sex, sexual orientation—under the Equality Act 2010, and thus classified as unlawful harassment. An employee making a claim on the basis of a protected characteristic, “may in essence be complaining of bullying,” Adair said. “It has to be framed properly to get through the gate; but the gist of what they are complaining about amounts to bullying.”
Bullying also might contribute to a legal claim of constructive dismissal–when an employer fails to fulfill its duty of care and an employee feels they have no choice but to resign.
Absent, but Not Fonder
Like Heal, Adair attributes the bump in bullying cases to a mixture of things but believes remote and hybrid work are a significant factor. “There is a lot to say for resolving disputes in person. I think the absence of close regular contact can sometimes result in devaluing or sometimes even a corroding of relations,” he said.
It’s more difficult to investigate and resolve issues in a hybrid or remote work environment, Adair said. More is put in writing that might otherwise be dealt with verbally, issues become more complicated, positions harden and matters can escalate into legal disputes.
A three-month limitations period applies to tribunal claims. “If a dispute is not resolved pretty promptly, the individual may be forced into doing something,” Adair said. “I suspect it has become much more challenging for managers to do that.” Once a formal claim has been lodged, it can be more difficult to resolve. “Every step that escalates the issue makes it more difficult to de-escalate the issue,” Adair said.
Heal, whose company provides mediation services, training and outsourced investigations, thinks the increase in tribunal cases has to do with both the complexity of cases and complainants’ confidence in their position. “If it’s just one instance of bullying, an employer normally could and should be able to solve it. Employers are finding cases more difficult to solve,” he said. “Likewise, the complainant knows their rights better than ever before. As a result, there is often a sense of responsibility to hold the organization to account in a public way. It isn’t just about money. … We often hear from complainants that they just want it to stop, they want it to change, they don’t want anyone else to go through it.”
Prevention Better Than Cure
To reduce workplace bullying claims, Adair recommended early intervention and more coaching of senior managers. If leaders improve their behavior, that trickles down to teams. “Any high-performance athlete has a dedicated coach; why not senior managers?” he said.
Adair also suggested re-engineering dispute resolution procedures to fit hybrid- and remote-work situations. Approaches that work in person may not be effective via a computer screen.
Employers need to decide what kind of organization they want to be and how they’re going to get there, Heal said. “They need a framework to measure against. What does good behavior look like? How do you have difficult conversations? What is the expectation? Who sets the tone?” Effective training should reduce the number of disputes and the cost of conflict resolution, and increase productivity and effectiveness.
“Behavioral change is not an easy thing to achieve,” Heal said.
“Opening people’s eyes, holding up the mirror as to why their behavior has caused distress to others can be life-changing,” he added. “Most people we deal with don’t realize they’re bullies. … Very few people wake up in the morning and say, ‘I’m going to be a bully today.’ ”
Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.