The Equality Act 2010, and its underlying concept of avoiding discrimination against those with protected characteristics such as sex, race and disability, has been around for a long time.  Most managers understand the legal imperative to avoid, say, rejecting a woman for a promotion in case she becomes pregnant and consequently takes time out of the job.  These principles have thankfully become so embedded in wider society that direct, overt discrimination in the workplace is relatively rare and nearly all our clients have in place Equality and Diversity policies and training.

More difficult to knit together are the commercial realities of tight deadlines, slim margins and target-attainment stress with the employer-of-choice qualities of inclusivity, flexibility and support.  More and more often, clients are coming to us to support them in handling allegations of bullying, often against very senior staff members who are key to the commercial success of their business.  The employee raising the grievance might not be alleging "harassment", the Equality Act form of bullying that requires unwanted conduct related to a protected characteristic (e.g., "banter" about sexuality).  More commonly, the underlying issue is that what a manager sees as an employee being "oversensitive" to appropriate line management, an employee sees as inappropriate bullying behaviour.  

The reputational impact of bullying allegations is far more damaging in today's global digital age, where allegations can quickly go viral and create backlash from customers or investors.  In the post-Times Up, post-Covid era the days of thrusting corporate culture being expected, or even boasted about, are over.  Employees are voting with their feet to work less, in a more balanced way, and in an environment where they can be themselves and can flourish.

Beyond this, employees are more willing to speak up, and pursue legal routes, when they feel employers are falling short.  An allegation of bullying can give rise to legal risk if the employee:

• links the bullying to an Equality Act protected characteristic – particularly sexual harassment, which from October employers will be under a new duty to take reasonable steps to prevent;
• links the bullying to a whistleblowing protected disclosure;
• establishes that the bullying has impacted their health; or
• treats the bullying, or the employer's failure to handle it, as a fundamental breach of their employment contract amounting to a constructive unfair dismissal. 

These issues can also feed into the employer company's own regulatory duties, and those of its statutory directors and other senior, fiduciary employees.  The Companies Act 2006 makes it clear that in pursuit of the overarching duty to promote the success of the company for the benefit of the members as a whole, directors should take account of a range of stakeholders/factors in making decisions. This includes having regard to the interests of customers, suppliers, the workforce, the environment as well as to “the desirability of the company maintaining a reputation for high standards of business conduct”.  Of course, listed companies are subject to even more scrutiny, as are public bodies and those exercising public functions.   For businesses in regulated sectors, there is an increasing regulatory focus on bullying and harassment; for example, the FCA, PRA, SRA and GMC are all active in this area, which means that bullying/harassment can be relevant to a person's "fitness and propriety" and their ability to work in the sector.

For our clients experiencing allegations of bullying, it's often the Boardroom that is the "dragons' den".  It can be sensitive for internal HR and legal specialists to persuade the Board to take allegations of bullying as seriously as they would take allegations of discrimination, and then to scrutinise its own methods and standards. We can help to explain the market, legal and psychological context by sharing our experience; and explore with senior stakeholders the value of self-examination, reverse mentoring and coaching to adjust to the change in workplace culture expectations by leading from the top down.  We can work with you to cascade the Board-agreed messages on culture, including through Diversity, Equity and Inclusion and Speak-up policies, training and allyships with appropriate charities. 

We can support you to put in place a crisis plan, so that you are prepared in case of an allegation against a senior stakeholder with strategies about:

• what you say about it to them / their team / the press / a relevant regulator, both pending an outcome and once your investigation has concluded;
• whether you can suspend them or adjust their duties (including statutory Board duties) and who would cover for them;
• what support you provide to them and to the employee making the allegation;
• how you resource an investigation – internally, with an independent investigator, with legal support;
• how any investigation dovetails with your disciplinary and speak-up policies;
• how you approach confidentiality and anonymity issues;
• how you retain legal privilege in advice and avoid damaging disclosure;
• what outcomes you intend to provide, to the relevant employees and to any relevant regulator.

We find that the other key factor in reducing credible allegations of bullying is how your business handles performance management.  Often the allegations arise when a manager who feels they have supported or overlooked underperformance for some time becomes frustrated, and lets their frustration show in their language and behaviour.  A brief and clear performance management policy would provide a road map for setting performance standards and issuing escalating warnings if those standards are not met, ultimately leading to the ability to dismiss an underperforming employee.  We find that clients who invest in training their managers about the policy and the need to invoke it early, and who invest in HR support to attend meetings under the policy, are better able to dampen allegations of bullying.