HR formalising complaints can make resolution more difficult

At the end of November, former Tory party chairman Grant Shapps resigned as International Development Minister amid claims that he failed to act on allegations of bullying that ultimately contributed to a Tory youth activist taking his own life.

The scandal coincided with the publication of an Acas discussion paper on workplace bullying and, although the repercussions in that case appear to have been particularly tragic, brought into focus what is considered to be a relatively common problem at work, as illustrated by startling statistics contained in the discussion paper. The Acas helpline receives 20,000 calls each year relating to workplace bullying, and in 2007 the impact on the economy of workplace bullying, measured in terms of absenteeism and lost productivity, was estimated at £13.75 billion. It seems timely, therefore, to review how workplace conflicts are regulated and whether there is scope for allowing employment tribunals to rule on workplace bullying complaints while the employee remains in employment. A similar scheme in Australia suggests this may be beneficial.

A key problem underlying the discussion is that ‘bullying’ is not defined in English law, which means different people will have differing views of what constitutes bullying. What one person considers to be bullying might be considered by another to be an over-sensitive response to legitimate managerial action. Conversely, some people might feel oppressed or intimidated but at the same time consider that the behaviour causing such feelings does not amount to bullying. This makes measuring and addressing the problem all the more difficult.

Employment law provides a number of potential avenues for bringing workplace bullying claims, and there are a host of potential legal claims that could arise, ranging from unfair constructive dismissal, through discrimination to personal injury caused by stress. But in most instances, this is a crude tool for addressing the problem as the focus is inevitably on a resolution that involves ending the employment relationship, whereas most aggrieved employees generally just want the bullying to stop.

HR professionals must be the first line of prevention, but unfortunately their effectiveness can frequently be limited by organisational culture. For example, a junior HR officer may find it difficult to uphold a bullying complaint against a senior manager, either through express or implied pressure, or the HR department may be reluctant to make findings against high achievers or those that generate a lot of revenue.

Another problem highlighted in the Acas paper is that some HR practices appear geared towards the ‘formalisation’ of complaints, rather than the informal resolution of developing problems, which inevitably raises the stakes and often makes finding an early resolution more challenging. This is partly based on a perception that dealing with things informally could potentially have negative implications for the organisation if legal proceedings follow, because courts and tribunals tend to place great emphasis on transparency in processes and on clear ‘paper trails’. Although relevant, this does not prevent organisations from dealing with things informally.

There is also a perception among some HR professionals that dealing with things informally might be construed as ‘sweeping it under the carpet’, and certainly in our adversarial legal system lawyers may try to portray genuine attempts at informal resolution as an example of the employer not taking the problem seriously. Most employers have anti-bullying and harassment policies, but there is rarely anything pro-active done to reinforce them through additional training, anonymous internal questionnaires, confidential internal helplines and so on. On the contrary, there is often a perception that such policies are written, filed away and forgotten about.

But even if the wider benefits of having a clear organisational approach to countering bullying are not appreciated or deemed sufficiently important to warrant anything more than lip service, the risk of claims if matters cannot be resolved is another reason why an employer should take the problem seriously. Tribunal claims can be damaging to an employer’s reputation, but also undermine workforce morale, and cost time and money to deal with. Most employers will surely want to avoid such consequences.

Oliver Weiss is a senior associate in the employment law team at Blake Morgan LLP
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