By Kate Smith, Employment Associate, and Jo Tindall, Employment Partner
Less than two weeks after he was appointed, Gavin Williamson resigned from his position as Minister of State without Portfolio over historic allegations of workplace bullying and expletive-laden text messages.
It has been reported that the allegations of bullying relate to a claim by a senior civil servant that Mr Williamson “deliberately demeaned and intimidated” them on a regular basis.
In addition, in 2016 when Mr Williamson was chief whip, it is alleged that he threatened a member of parliament with revealing details about her private life.
In today’s world, many employers come across allegations of bullying in the workplace, but how should a complaint be dealt with when it relates to historic allegations?
From a legal perspective, bullying claims can result in an employee bringing a claim against their employer, generally either for constructive dismissal or harassment.
A constructive dismissal occurs where an employee resigns in response to a very serious (or fundamental) breach of contract by their employer. Bullying can result in a fundamental breach of contract (usually a breach of the implied term of trust and confidence, or the duty to provide a safe working environment). An employee must resign promptly (i.e. without delay) in response to the breach of contract.
Harassment claims can be brought where the bullying relates to a protected characteristic (or is of a sexual nature). There must be unwanted conduct which has the purpose or effect of violating dignity or creating an intimidating, hostile, humiliating, degrading or offensive environment. Generally, claims must be initiated within three months of the act of harassment.
But where does this leave employers where bullying claims relate to behaviour which might have occurred a number of years ago? Whilst the risk of a successful tribunal claim may be reduced where claims are historic, employers should not assume that claims will fail. This is because a breach of the implied term of trust and confidence may result from a continuing course of conduct extending over a period of time which culminates in a more recent ‘last straw’ or final act which is then relied on by the employee.
The ‘last straw’ (or final incident) need not be a serious breach of contract in itself, and a tribunal will usually consider whether the employer’s course of conduct demonstrates an intention to no longer be bound by the contract of employment.
Additionally, there is reputational damage to consider. We are in an age where having proper equality, diversity and inclusion credentials is all important to brand image, recruitment and retention.
Aside from the above, ignoring historic complaints can result in a culture of bullying being inadvertently condoned, causing ongoing risks in the future.
For these reasons, there is significant risk attached to ignoring complaints of historic bullying.
How do you investigate complaints?
Employers should follow internal policies in relation to bullying and harassment. These usually provide that an employee should raise the problem informally with the person responsible or with their line manager if they do not feel able to speak to the individual concerned (which is not uncommon). It is also important to ensure that support and guidance from the employer’s human resources department (if there is one) is appropriately signposted. A workplace culture which actively supports employees who come forward and ensuring that your policies are ‘living and breathing’ will be key to employees feeling able to come forward.
Despite this, there may well be occasions where an employee feels uncomfortable about taking the matter further.
However, even if an employee does not wish to make a complaint, employers have a duty protect staff from bullying, and careful consideration should always be given to investigating allegations in any event, particularly if they are serious.
Any investigation into allegations of bullying / harassment should be carried out confidentially. Details of the parties involved should only be disclosed on a ‘need to know’ basis. Not only is this important in the context of ensuring that the ‘rumour mill’ is kept at bay, but also to stay on the right side of data protection laws and to protect reputations.
If the allegations involve former employees, employers should still consider whether there is any appropriate action that can be taken. For example, it may be possible to investigate the allegations by speaking to any former employees who are named as witnesses. Investigations may reveal a culture of bullying which will need to be addressed.
Can you take disciplinary action on the back of complaints?
If a process is initiated and it is concluded that bullying or harassment has taken place, disciplinary action should be considered against the perpetrator. Whether dismissal is the appropriate sanction will depend on all the circumstances, and alternatives such as training and coaching should also be considered.
Employers should be mindful that if bullying conduct has been condoned or managed informally in the past, any formal disciplinary sanction may be challenged on the grounds that it is not fair or reasonable.
What else should you consider?
Where allegations of bullying or harassment are made, steps will usually need to be taken to manage the ongoing working relationship between the parties. This might involve mediation, coaching, counselling or changes in roles. Employers should ensure they think about what practical steps they might need to take to repair relationships and take the time to ‘check in’ with those concerned.
Employers should also make sure that policies preventing harassment and bullying are put in place and that they are brought to the attention of all employees. A further recommended step is to roll-out equality, diversion and inclusion training within the team concerned or the wider workforce.
How we can help
gunnercooke has a team of experts who provide the following:
– independent investigations into bullying and harassment complaints
– bespoke workplace policies on equality, diversity and inclusion, and anti-bullying and harassment
– delivery of equality, diversity and inclusion training which is tailored to meet your specific needs
– advice and assistance on all bullying, harassment and discrimination issues
Let us know if we can help you by getting in touch with your usual gunnercooke contact. Find out more about the employment team here,