Toxic workplaces hit the headlines: a warning to employers to take steps to prevent and tackle workplace misconduct

Sadly, evidence suggests that those who raised complaints about Raab’s conduct are only the tip of the iceberg. Indeed a survey commissioned by the Cabinet Office, revealed alarming levels of bullying and harassment across the Civil Service with three in four respondents claiming to have experienced such conduct during their career, and a worrying 78% saying that they have witnessed this treatment levelled at others. The CBI has also admitted significant failings around taking appropriate action when toxic workplace behaviours were identified, accepting that it failed to protect its staff.

Lessons from these two cases are equally relevant to employers in other sectors, including the legal profession which we focus on below. Plainly more needs to be done to ensure that colleagues treat each other with dignity and respect at work, and, where behaviour crosses the line, appropriate action must follow. Creating safe, respectful, and inclusive workplaces remains a key priority for organisations and especially for legal firms, with increasing oversight from regulators on the horizon.

Behaviours amounting to bullying or harassment

The terms bullying and harassment are often used interchangeably. However, harassment has a specific legal definition in the Equality Act 2010. It captures any unwanted conduct related to a relevant protected characteristic (for example, sex, race or disability) which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In addition to unwanted conduct ‘related’ to sex, the Equality Act contains a further definition of ‘sexual harassment’, encompassing any unwanted conduct of a sexual nature which has the same prohibited purpose or effect as other forms of harassment.

Bullying, on the other hand, is not specifically defined in UK law. ACAS sets out some guiding principles, describing bullying as unwanted behaviour from a person or group that’s either:

• offensive, intimidating, malicious or insulting; or

• an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.

For example, shouting aggressively at a colleague, or criticising a colleague in front of others, will usually amount to bullying. In the context of personal injury claims, the courts have also considered what behaviour might amount to "bullying”; although very fact specific, these cases are illustrative. For example, blunt language aimed at driving a team’s performance forward rather than aimed at an individual has been held not to amount to bullying. Whereas, a “campaign of mean and spiteful behaviour” clearly crossed the line, demonstrating that it is the cumulative effect of alleged conduct that also needs to be taken into account.

The ACAS guiding principles are a useful benchmark, but it’s important that when employers are considering complaints about conduct in the workplace and determining what steps to take in response to these, that they recognise that it is not whether the conduct in question meets any formal definition of bullying. Rather it’s whether it amounts to a breach of accepted behaviour, often something defined in an organisation’s own disciplinary policy.

Importantly, in respect of both bullying and harassment, the intention of the perpetrator has limited relevance; what really matters is the impact of the behaviour on the individual on the receiving end. Unpicking this slightly, there are subjective and objective elements to the legal test for harassment under the Equality Act. When the unwanted conduct in question had the purpose of creating the prohibited effect, it automatically amounts to harassment without considering the effect it had on the victim.

If, however, the unwanted conduct did not have that purpose, the focus turns to effect. A tribunal would consider, amongst other factors, whether it was reasonable for the conduct to have that effect on the victim. This means that in some circumstances, if it is wholly unreasonable for the victim to feel uncomfortable, the treatment might not constitute harassment. Raab’s argument that he did not know the impact behaviour was having, or that he did not intend any adverse effect, would, however, clearly not amount to justification for harassment.

Significant reform which was set to tighten up employers’ obligations to prevent harassment was on the horizon in the Worker Protection Bill. However, the progress of the legislation now looks to be stalling and whether the changes will come to fruition is far from certain.

Evolving standards of acceptable workplace conduct

The Tolley Report into allegations of bullying made some clear findings about Raab’s behaviour; he behaved in a way that was “intimidating” demonstrating “unreasonably and persistently aggressive conduct” which “involved an abuse or misuse of power in a way that undermines or humiliates”. These findings represent very clear and obvious examples of bullying, and especially so in respect of someone in a senior role. Humiliation as a motivational tool is not only dangerous and unethical, as this tribunal case concerning verbal abuse by a line manager demonstrated, it risks breaching the implied duties employers owe to their employees.

It is fair that, on occasions, it is far from clear whether or not behaviour complained about by an employee did or did not amount to bullying, but these examples are not close to that. Raab’s response that “the threshold” for bullying should not be set so low clearly demonstrates his out-of-date view on acceptable conduct at work.

It’s crucial that organisations ensure that workplace conduct and culture reflect the standards and values of today. A generation ago, it perhaps wouldn’t have been unusual to shout, intimidate or even throw a paperweight at other, particularly more junior, colleagues. But following an evolution in workplace values and attitudes in recent decades, what we now understand as acceptable workplace conduct has moved on.

Impact of a toxic workplace culture

It is often cited that workplace culture is defined by the worst behaviour tolerated. So, when bullying and harassment is present, or not appropriately dealt with (as the CBI confirmed was the case in respect of misconduct and sexual harassment within that organisation), there will undoubtedly be a huge negative impact on organisational culture. In addition, inappropriate behaviour from seniors can be particularly impactful on morale, attitudes and behaviour. The CIPD highlights the wider impact when employees observe the mistreatment of others in its recent report into bullying and incivility at work, namely that people tend to replicate behaviour from their supervisors or colleagues, which simply means that the inappropriate behaviour perpetuates.

Disrespectful, non-inclusive, unethical, aggressive and abusive behaviours will foster toxic cultures, the impact of which cannot be understated. The CIPD highlights that it is related to many negative outcomes, notably higher levels of mental illness and burnout, reduced self-esteem, job satisfaction, productivity and performance, increased absenteeism and employee attrition.

This aligns to the report into Raab’s behaviour which highlighted that those on the receiving end had experienced a considerable impact on their health, with some suffering significant negative impact on their psychological well-being as a result of their interactions.

As this week’s headlines about the implosion of the CBI vividly illustrate, a failure to adequately tackle bullying or harassment in the workplace also has huge potential to cause reputational damage. Clients and customers expect ethical standards to be maintained and trust is quickly lost. One of the many organisations to have left the CBI this week tellingly commented that zero tolerance of bullying and sexual harassment “has to be a given in a modern organisation” and failure to recognise this is “archaic”

Increasing regulatory oversight

Employers across all sectors need to focus on tackling misconduct and achieving a healthy workplace culture, but some specific industries are seeing an increase in regulatory oversight on this issue. The legal profession is a good example. As the Ministerial Code sets out the standards of conduct expected from those who perform ministerial duties, the Solicitors Regulation Authority (SRA) details the standards of conduct expected by regulated firms and individuals across the legal profession. Last week, the SRA secured approval from the Legal Services Board to change the rules around workplace culture.

Whilst the detail is yet to be outlined by the SRA, it’s clear that firms must ensure that all staff are treated fairly and with respect, with managers obliged to challenge behaviour that does not meet this standard. The planned changes to the code of conduct are part of a wider effort by the SRA to tackle and root out so-called ‘toxic’ behaviours in the workplace. This is accompanied by a greater emphasis on sanctions for those who create or allow such conduct to happen at work. All of this sits alongside the SRA’s recent guidance on sexual misconduct which makes clear that firms must foster a zero-tolerance culture around sexual harassment.

In light of these developments, regulated firms will need to take a fresh look to understand the true organisational culture and the nuances in day-to-day interactions, often in high stress and pressurised situations. Firms will need to ensure that all colleagues understand the types of behaviours that can amount to bullying and harassment, including sexual harassment, and ensure that senior managers are well versed in their responsibilities when it comes to role-modelling good workplace culture.

While these new rules may be law firm specific, these are steps that all employers can sensibly take. Recent cases high profile examples have also served as a reminder of the role the Equality and Human Rights Commission plays in enforcing equality laws across society. Although the EHRC will by no means be involved in every allegation of harassment, as regulator they have broad enforcement powers which could see them investigating apparent examples of harassment and taking remedial action, steps which are of course likely to attract media attention.

In the City, the Financial Conduct Authority also has powers to investigate non-financial misconduct. Its activity over recent years indicates that this appears to be moving up the enforcement priority list. Interestingly, data shows that the majority of behaviour related complaints raised with the regulator relate to bullying, harassment and physical aggression.

Continued emphasis on culture

More than ever people want to work for employers that provide safe, inclusive workplaces that reflect their values. However, fostering such a workplace culture is not always an easy task, especially with many employees working in a hybrid way. How can employers take steps to ensure that a positive workplace culture is present across the organisation?

• Set clear boundaries and stick to them – Policies should clearly set out the standards of unacceptable workplace behaviour, and include transparent, sensitive and confidential processes for reporting inappropriate workplace behaviour. It’s also crucial that once behavioural boundaries are set, that firms stick to them and take robust action where standards have been breached. Every time boundaries are pushed without consequence, the boundary slips risking inappropriate conduct creeping into workplace culture. Dealing with unacceptable behaviour quickly and professionally, in line with policies, will set a clear precedent and demonstrate a zero-tolerance approach to poor behaviour.

• Train your workforce – Eliminating toxic behaviour, especially in a large organisation, cannot be one person’s job. Workplace culture is made up of those everyday workplace interactions. Employers should regularly train staff to understand and identify toxic behaviour, and how to stop it. It’s especially important that managers understand how to spot the signs, approach employees perhaps suffering in silence, and escalate concerns to HR. Training should also provide guidance on how to support colleagues experiencing bullying or harassment and how to hold any such conversations sensitively and compassionately.

• Timely and constructive feedback - Delivering constructive feedback is also a crucial part of managing a high performing team. So, it’s important that managers are trained in how to approach performance conversations and deliver constructive feedback. Employers are likely to face, perhaps unfounded, allegations of bullying that arise from a perception of unfairness. This can be a consequence of failing to address performance concerns in a timely way. Efforts to avoid conflict and difficult conversations can mean that there is a disconnect between previous appraisals and conversations when performance concerns are finally tackled.

• Foster a speak up culture – Bystanders are essential to creating an anti-bullying and harassment culture. Victims or bystanders of inappropriate workplace conduct should feel comfortable speaking up and know how to do so, this can include supporting your workforce with the tools and language to use in the event that inappropriate workplace conduct has taken place. In terms of putting in place mechanisms for this, employers should consider setting up reporting systems which allow anonymous reports to be made. Such systems could: capture complaints that would otherwise go unreported; encourage complainants to come forward; and allow some form of action even if full investigation is not possible (due to the anonymity of the complainant). Where complaints are not raised anonymously, an employer can of course offer more support to the complainant. Employers should therefore make sure there are trained workers who can support a complainant through the process. These could be members of the HR team or may be nominated “guardians” (see here for an example of a guardians programme).

• Investigating complaints – The appointment of Adam Tolley KC as an external investigator in the Raab case is a reminder of some of the key considerations for organisations facing allegations of wrongdoing that require investigation. The investigator must be impartial – the mere perception of bias risks undermining the process. The investigator must also be sufficiently senior and have the appropriate skills, experience and time to investigate fully. When there is no one internal that can meet these requirements, it can be beneficial to appoint an external third party – such as a law firm – to investigate.

• Remember the accused – The reality is that not all allegations are well-founded and being accused of bullying or harassment can have a significant impact on the accused. Some might be cynical and raised in bad faith; in other cases the victim might feel genuinely wronged, but the evidence does not support their complaint. It’s important that an investigation is therefore balanced and sensitive, procedurally fair, progressed without undue delay and that appropriate support is also offered to the accused.

Our dedicated team client training team focuses on organisational culture. If you would like to have a conversation about how we can support with workplace culture training, listening exercises, or HR consultancy services in the area of anti-bullying and harassment, diversity and inclusion, please contact the Lewis Silkin training team at Lucy.Hendley@lewissilkin.com.

Please also join us on 17 May where we explore the behaviours and workplace cultures which can give rise to concerns about toxicity at work.