Bullying in the Hybrid Workplace
By Charlie Thompson, Partner, Stewarts Employment Team
December 21 2021 - Bullying at work reflects the culture of a workplace. Certain conditions create a hospitable environment for bullying, whether it is leadership failures, excessive work pressure, a workplace full of cliques, policies that are not enforced, lack of training or an HR team that is not empowered to tackle problems.
In that context, bullying is often a product of the working environment. Organisations have worked hard over many years to establish and maintain a working environment that reduces the risks of bullying. For many, however, the pandemic has significantly and rapidly disrupted those ways of working. Inevitably, there has been an impact on working environments and workplace culture.
For many, the change has been minimal. In larger international organisations, people were already accustomed to many of their interactions with colleagues being virtual. It was already engrained in the company culture. However, the change has been much more disruptive for organisations and employees where workplace interactions were primarily face-to-face and at one premises. Unaddressed, the conditions for bullying are present.
On one level, the increased uptake of remote and virtual working should decrease allegations of bullying. With fewer face-to-face interactions, the opportunities for raised voices, comments on personal appearance, inappropriate touching and school-playground-style bullying should be much lower.
However, hybrid and remote working presents different problems.
Home working has led to a further erosion of normal working hours. The prospect of receiving emails or deadlines being set at times convenient for a manager but difficult for a junior employee is higher.
Without regular face-to-face interaction, there are fewer opportunities to "clear the air" or for a manager to check up on an employee's wellbeing. With email and instant message being the primary form of communication, it is more likely that communications will be either misjudged or insensitively worded by the sender or misinterpreted by the recipient. This can create tensions, which can fester without the safety valve of face-to-face interaction.
In addition, a more dispersed, fragmented workforce means cliques are more likely to form. Those in the office may be given more interesting work or better opportunities for advancement than those who are not.
It also means that with fewer regular social events and (in some cases) reduced alcohol tolerance as a result, when there are work events, the risk of inappropriate conduct is increased.
Risks and rights
Typically, bullying involves a misuse of power that makes someone feel vulnerable, upset, humiliated, undermined or threatened. Rather than arising only through acts such as hurtful comments or criticism, it can also arise from being excluded or ignored.
There is, however, no single legal definition of bullying. There is also no claim that can be brought in the Employment Tribunal or High Court for bullying.
Nevertheless, bullying can lead to claims including for constructive dismissal, discrimination, harassment and personal injury.
Importantly, an employer’s obligations to an employee are in no way lessened if the employee is not physically present in the office.
If you are being bullied
If you are being bullied, it is important to consider how you would like the issue to be resolved. What is your ideal outcome? Is it a resolution through workplace mediation, redeployment, a disciplinary process against the bully, a confidential settlement or having your day in court? Once you have identified your aim, you can build a strategy around it.
It is useful to consider what evidence may be available. Bullying investigations are often extremely difficult for employers to conduct because allegations are typically disputed, and there is often a shortage of documentary evidence. In a hybrid workplace, there may be fewer eyewitnesses. However, in a hybrid workplace, there may be helpful documentary evidence. Consider whether there are specific emails, messages or calendar invites that demonstrate bullying. It is also sensible to keep a contemporaneous record of bullying.
A common first step is to raise a formal grievance under your employer’s procedure. This may appear to be a significant step that inevitably escalates the issue into a full-blown dispute. But this is not necessarily the case. Grievance procedures can lead to a mutually satisfactory resolution of the issue. And, employees who do not raise a formal grievance and then subsequently take legal action are likely to be criticised for not first exploring internal channels. This decision is to be balanced against the risk that an employer will "close ranks".
Being bullied is hard enough, and entering into a potentially adversarial formal process may be daunting. It may, however, be the best way to resolve the issue. Regardless of the strategy, it is important to ensure you have a robust support network, not just of family and friends but also professional advisers and medical professionals. Your GP is likely to be sympathetic to your issues and will be a useful ally.
If you are accused of bullying
In their zeal to meet their duties to the employee complaining of bullying, employers can neglect their duties towards the individual accused of bullying. This person may have the most to lose in any bullying investigation. If the allegations are upheld, and disciplinary proceedings result in a gross misconduct dismissal, it may mark the end of that person’s career.
The manner of an investigation and the length of a suspension may, even if the complaint is dismissed, also make it difficult for the individual to return.
It is usually an extremely stressful situation for that individual, so a functional support network is important. It is essential to create and implement a strategy at the earliest opportunity to extinguish the allegations and mitigate their damage. This typically requires a balanced, nuanced approach. For example, a robust rejection and a counter-grievance may sometimes be appropriate. But it comes at the risk of raising the temperature further and appearing to bolster the existing allegations of bullying.
A priority will be to ensure that steps are taken so that your future is not jeopardised by how an investigation is carried out.
About the Author
Charlie Thompson Partner in Stewarts’ Employment team, is an experienced employment lawyer who specialises in complex and high-value workplace disputes. Charlie advises employers, employees and LLP members. He acts for clients in a wide range of sectors including technology, media, entertainment, financial services and professional services.