At PMQs in the House of Commons last week Sir Kier Starmer likened PM Rishi Sunak to “a weak boss so worried the bullies would turn on him, he hid behind them”.
Mr Starmer was referring to the Prime Minister’s decision to reappoint Gavin Williamson to a senior cabinet position even though Mr Williamson was being investigated for allegations of bullying. What lies in store for Mr Sunak now that he has reappointed to Dominic Raab to his former role as Lord Chancellor and Secretary of State for Justice and reports circulate that some members of staff so fear Mr Raab’s return they have been given the option of moving departments?
In the world of work most employers today will have robust disciplinary rules and policies in place to enable them to deal effectively with workplace bullies. In most cases management will be able justify suspending the bully from work when they receive serious allegations from staff that they are being bullied by another colleague and there is no other viable alternative to suspension. The suspension letter should make it clear that the suspension will be on full pay; that it is a neutral act that makes no assumption about guilt, and that the suspension will be kept as short as possible. In line with the updated guidance from ACAS issued in September 2022 the employer must also consider the well-being and mental health of the person suspended and let them know what support is available to them.
Sometimes an employer will need to separate two people after one has made a serious complaint against the other. The person who made the complaint should not be the one who is moved unless they have requested it. Moving the complainant could lead to claims by them that they are being punished for making the complaint in the first place. Furthermore, if the complainant alleges they were being bullied by a colleague for a reason connected with one of their protected characteristics such as their race, gender, disability or religion or belief, and is moved against their wishes, they will have a claim against their employer for “Victimisation” under S27 of the Equality Act 2010.
Returning to Westminster for a moment, Gavin Williamson has often been portrayed by the media as a Machiavellian figure practising the “dark arts” of politics (an image enhanced by keeping a pet tarantula in his office when he was Chief Whip). What strategies might the employee who is clearly committing some act of gross misconduct deploy to delay or avoid a disciplinary sanction or dismissal? Or as a means to try to extract a settlement payment?
Whistleblowing detriment anyone? Why not throw in a victimisation claim too?
Many readers in line management or HR roles will have experienced that sinking feeling when their perfectly fair disciplinary process is highjacked by the scheming and unscrupulous employee who asserts that the real reason they are being disciplined is because they have ‘blown the whistle’ about something or raised a discrimination complaint. Is it now the employer’s line management and HR team who are being bullied, as well as other colleagues? It can and does happen.
There is no reason why an employer cannot continue to be robust under such circumstances but great care is needed. If an employment tribunal concludes that the reason an employee was subjected to a detriment, such as a suspension, was “materially influenced” by the fact that they made a “protected disclosure” (blew the whistle) the tribunal could award that employee compensation for their “injury to feelings”. If the tribunal concludes that the reason or principal reason they were dismissed was because of their protected disclosure they will win an automatic unfair dismissal under claim S103A of the Employment Rights Act 1996. That means there will be no cap on the amount of compensation they might be awarded for loss of earnings. Similarly, if a tribunal concludes that the unfavourable treatment or dismissal by the employer was connected with unlawful discrimination the employee could also be awarded compensation for injury to feelings and uncapped loss of earnings.
Employers need to show there is no causal link
That said, employers should not be deterred from taking disciplinary action against a bully, especially when they have a duty of care to protect other staff. Many whistleblowing and discrimination claims fail because the employee is unable to prove a causal link between their protected disclosure and the detriment or dismissal. The best way a business can protect itself from false allegations by bullies is by gathering cogent evidence of misconduct through a scrupulously fair and even-handed disciplinary investigation. And by keeping a very careful note of the times and dates of key events. Prospective whistleblowing claims can sometimes be stopped in their tracks if the employer can show that they had be alerted to, and were acting on, some potential act of gross misconduct before the protected disclosure was made.
If you would like further support on any of these challenging and risky issues, please contact a member of our Employment team who will be happy to assist.