By Anthony Wooding, convener of ASMADR East Anglia and a member of ASMADR’s civil/commercial and family teams. This article was first published in Legal Voice on 16 November 2018. It is reproduced here with the kind permission of the Legal Voice editorial board.
Bullying is everywhere in the news at the moment. Not least because reports of it have reached the higher echelons of power including the House of Commons. Dame Laura Cox found there a ‘culture, cascading from the top down, of deference, subservience, acquiescence and silence, in which bullying and sexual harassment have been able to thrive’. And there are claims of bullying in the NHS, most recently in NHS Highland.
A study, published in the journal Public Money and Management, used data from NHS Digital to gauge the impact of bullying on sickness absence, employee turnover, productivity, sickness presenteeism, and employment relations. The financial cost of each of those factors was then combined to produce the overall figure of £2.281 billion per year.
Bullying also occurs in the legal profession. A High Court judge in an ongoing disciplinary case about sanctions against a junior lawyer for backdating letters referred to mitigating circumstances due to a ‘poisonous atmosphere’ in her firm, in particular the senior partner’s comments to her that she would need to work through evenings, weekends and bank holidays to make up the shortfall on her target. Such behaviour might be explained by costs pressures on a firm, but not justified by them in any way.
Bullying can be the result of intimidation, incompetence or psychopathology, and can come from any direction in a hierarchy, though it is more generally from a superior at work as the power relations work against the person being bullied (less so in the case of cyberbullying which is a separate and growing problem – scarily, any one is in a position to do that, and it may be even come from someone just because they are, or perceive themselves to be, powerless elsewhere).
Whilst most organisations claim to have strict policies to deal with bullying, it is the experience of too many that these are ineffective. We all have good and bad days, and on the latter, we might be a little curt, which may come across as a little bullying, but what we really mean here is a systematic targeting of an individual through words and deeds.
The law does not define the term ‘bullying’. It is at best a subset of ‘harassment’. Under the Equality Act 2010, harassment is ‘unwanted conduct which is related to a protected characteristic’ (age, disability, race etc.) but bullying itself does not need to be in a discriminatory context. The Protection from Harassment Act 1997 defines harassment as ‘a course of conduct’ causing ‘alarm or distress’ which is a higher threshold. These differing definitions and other inconsistencies with legal tests which are partly subjective and partly objective, don’t help for consistent dealing with the problem.
Policies are a sine qua non but ineffective if there is no open door through to a safe system in order to report bullying. Although less likely with that in place, victims may not wish to make a formal complaint for fear of further repercussions. It is harder then for management to investigate properly and act, but not impossible. On the flip side though, putting pressure on someone to complain about bullying can be bullying itself. Nor would it generally be right, except perhaps in extremis, for someone to report bullying directly on someone else’s behalf, least of all without their consent.
We need to remember of course that both sides need to be heard. But if management is not vigilant then this can itself result in reaffirming bullying. In research for a forthcoming management book, I came across a case where a clever bully managed to subvert reality. They became aware that others were going to approach a union to complain about their poor behaviour. They then pre-empted the others and told the union that they were being victimised! It may be that some of this style of dealing is going on in the House of Commons right now.
The issue is likely to be more difficult to resolve in a smaller firm. There is less space, so an alleged bully and victim cannot be ‘separated’ (literally). Such businesses are also often owner-managed which means the bosses take the financial risk, which in turn might lead them to overstep the mark either by acts of bullying themselves, or condoning it by inaction.
In companies big and small for sure many of us have come across ‘out of control’ CEOs (plus, at least indirectly, political leaders too!).
Much more effective screening of applicants, for management positions in particular, will help. It is possible to assess potential for bullying traits by psychometrics. Emotional intelligence and general maturity can be assessed. Often an applicant is promoted internally, on merits which ignore absence of bullying traits. This must stop and can be avoided by open management which observes before it promotes. 360-degree appraisals will also help.
Also, in the news of course, we have the issue of NDAs (non-disclosure agreements) being used wrongly to silence when there is an imbalance of power. This raises other legal and ethical issues worthy of another blog, but suffice to flag up here that whistle blowing law may still provide some protection to subsequent disclosure: legal advice in this tricky area is essential.
Whilst we may not be able to eliminate bullying completely, we can all help to beat bullies by having the right policies, the right systems and the right culture at work. Aside from the effect on mental health, as the report in Public Money and Management shows, the knock-on financial cost is huge. It will be mirrored for scale in small organisations. Even if it is just resulting in higher turnover of staff that is a significant cost in terms of recruitment and training.
If you believe you are experiencing bullying or witnessing it, or have received a bullying complaint as a manager, by taking some considered steps, you are helping not only to stop it in your workplace but in the bigger picture to stop all the horrible consequences of rife bullying today.
Civil and commercial mediator, mentor, trainer, author and consultant in long established firm of solicitors.