Challenging toxic workplaces
There have been a number of high-profile cases in the press recently of bullying and harassment in the workplace and toxic corporate culture. Questions are being raised about how these behaviours and conditions are able to prevail over sustained periods of time, and who among senior leadership should be held accountable for tolerating them.
Despite an evolution in recent years towards more diverse and inclusive workplaces, allegations of this nature continue to be made. Partly, this is down to societal changes and a brighter spotlight being shone on the problem; inevitably, increasing examples of high-profile cases will instil confidence and encourage more people to tell their stories.
The pandemic has exacerbated toxic cultures too, as hybrid working can isolate some workers, making it harder for them to identify bullying and abuse, and some have simply forgotten how to behave when they are in the office or around colleagues.
For anyone who feels they have been abused at work, what does the law say and how can justice be served?
In many cases, individuals are suffering significant physiological harm because of a boss or colleague’s behaviour, which impacts their lives in all manner of ways. For example, personal relationships can be ruined and the individual can find it difficult to return to employment. Often, taking legal action is not just a choice but a necessity, as these individuals require professional support.
Once an individual has decided to take legal action for harassment or bullying at work, the employment tribunal is often the first step. However, tribunals have unforgiving time limits – normally a claim must be brought within three months of the last instance of harassment, which rules many cases out of time.
Furthermore, the legal costs involved in pursuing a claim often prevent or deter employees from bringing a case. More and more people are considering going down the civil route, where the time limits are more generous and the costs less punitive.
The civil route
In the civil courts, if the claim includes an allegation of negligence – where the employers have failed to take steps to protect an employee from harm – the claimant will have three years to make a claim from the date of any injury. For claims under the UK's Protection from Harassment Act 1997, the time limits are even more generous, allowing claims up to six years since the last incident of harassment.
This opens up the route to more claimants, but other difficulties in accessing justice prevail. For example, in civil cases there is no legal definition of ‘harassment’. The courts have said it has ‘a meaning which is generally understood’.
Perhaps unsurprisingly, this has led to several conflicting judgments in cases involving harassment at work, and this lack of clarity makes it difficult to advise clients on the prospects of success of pursuing a claim. This can often deter potential claimants from proceeding down the civil route. As the courts continue to wrangle with this issue, introducing a clear legal definition of what constitutes harassment would be a welcome change for both employers and employees.
Who to blame?
Another question is whether it’s enough to blame the individual, or should others be held accountable too? If an employer knew about the harassment and failed to take steps to protect the employee, then they could be held legally responsible in a claim of negligence. However, it is often difficult to prove what an employee knew and when they became aware of the harassment. Typically, existing employees are hesitant to provide witness evidence against their employer, which is often a real difficultly in these cases.
Alternatively, even if an employer is not aware of the harassment, they can be held vicariously liable under the Protection from Harassment Act 1997. However, for a claim to be successful under the Act, it must be shown that the harassment was closely connected to the role the perpetrator was employed to perform. This can often be difficult to establish.
In a welcome development, UK Labour MP Rachael Maskell has introduced the Bullying and Respect at Work Bill, which aims to establish mechanisms for reporting and investigating incidents of workplace bullying. The Bill also proposes a Respect at Work Code and enforcement powers by the Human Rights Commission.
Maskell highlighted the lack of a direct route to restitution within the current legal framework and emphasised the need for a legal definition of workplace bullying. The Bill aims to ensure that employers take responsibility for the conduct of others in the workplace.
While more attention is finally being paid to toxic cultures in workplaces, much more needs to be done to ensure that victims and survivors of abuse have access to the support and justice they deserve to ensure they can move on with their lives.
Author: Thomas Beale, partner, Bolt Burdon Kemp
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This article was first published in AB magazine August 2023