Andrea Oates looks at what the law says about protecting workers from psychosocial hazards.

The new Labour government was elected with a promise to review health and safety guidance and regulations with a view to modernising legislation where it does not fully reflect today’s workplace.  Unions and safety campaigners will want to see this include an examination of the regulation – and enforcement – of psychosocial hazards including bullying and harassment.  

In the TUC’s latest survey of trade union safety reps, published in August 2023, 45 per cent of respondents pointed to bullying and harassment as one of their top five health and safety concerns, second only to stress (cited by 59 per cent). And last month, the Chartered Institute of Personnel and Development (CIPD) published the findings of its 2024 Good Work Index survey, revealing an estimated eight million people had experienced “workplace conflict” over the previous year. The most common form of conflict reported by almost half of respondents (48 per cent) was being undermined or humiliated at work. 

Definitions

The Acas employment advice service explains that there is no legal definition of bullying, but it can be described as “unwanted behaviour from a person or group” that is either “offensive, intimidating, malicious or insulting” or “an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”.

It can be a regular pattern of behaviour or a one-off incident. It can happen face-to-face, on social media, or in emails or calls. And it can happen at work or in other work-related situations, it explains. Examples include constantly criticising someone’s work or putting them down in meetings, spreading malicious rumours, deliberately assigning someone a heavier workload than everyone else, or excluding them from team social events.

There is a legal definition of harassment in the Equality Act 2010. This is unwanted conduct related to a relevant “protected characteristic” which has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

The relevant protected characteristics are age, disability, gender, reassignment, race, religion or belief, sex or sexual orientation. Harassment is then a specific form of discrimination under the Act, so there is much stronger legal protection for harassment of a discriminatory nature. There is also specific provision for sexual harassment. However, workplace harassment that doesn’t relate to these protective characteristics is not specifically outlawed under the Act.

In cases of very severe workplace bullying or harassment the victim may be able to bring a claim under the Protection from Harassment Act 1997. Unions also argue that the general duties in the Health and Safety at Work etc Act 1974 require employers to protect their employees from bullying and harassment, and that the Management of Health and Safety at Work Regulations 1999 require them to assess the risks of bullying and harassment.

Who regulates?

However, perhaps surprisingly, the Health and Safety Executive (HSE) says on its website, in relation to investigating potential issues of work-related stress, that it “is not the appropriate body to investigate bullying or harassment”. 

“Bullying and harassment, and similar issues of organisational discipline, should be referred to Acas (e.g. breaches of policies on expected behaviours, discrimination, victimisation or equality) – HSE is not the primary authority for these issues,” it adds.

And it sets out that discrimination in relation to the protected characteristics of the Equality Act 2010 should be referred to the Equality and Human Rights Commission (EHRC) or the Equality Advisory Support Service. The police deal with offences under criminal law including where there is physical violence or a breach of the Protection from Harassment Act.

This advice comes even though the HSE guide, Tacking work-related stress using the Management Standards approach, makes it clear that one of the six standards, Relationships, includes promoting positive working to avoid conflict and dealing with unacceptable behaviour. The standard is achieved where “employees indicate that they are not subjected to unacceptable behaviours, e.g. bullying at work”. The guide also sets out in an example stress policy that managers will “ensure that bullying and harassment is not tolerated within their jurisdiction”.

Hazards magazine points out that Acas is neither an inspectorate nor an enforcement agency, while the EHRC requires “reasonable grounds” to believe there is problem before it can consider an investigation.

In July 2023, the Labour MP Rachel Maskell put forward a Bullying and Respect at Work Bill aimed at improving the law in this area. She said that some 29 per cent of workers will experience workplace bullying at some point, and one in 10 had experienced it in the previous six months, but the “lack of access to redress and justice explains why 53 per cent of those who are bullied never report it”.

“What is the point, if it exposes you further and there is no legal protection?” she asked.

Her bill, which fell when the 2022-23 parliamentary session was prorogued, included a statutory definition of bullying at work and a Respect at Work Code “to set minimum standards for positive and respectful work environments”. It provided for claims relating to workplace bullying to be considered by an employment tribunal. And it contained powers for the EHRC to investigate workplaces and organisations where there is evidence of a culture of, or multiple incidents of, bullying and to take enforcement action.

Labour’s review may want to examine the approach taken by Safe Work Australia, a national policy body that aims to improve health and safety at work. In 2022, it published an approved code of practice on managing psychosocial hazards at work under the Work Health and Safety Act. This provides practical guidance on how to achieve the standards of work health and safety required under the Act and the Work Health and Safety Regulations, and effective ways to identify and manage risks. This includes bullying and harassment and sets out the factors that can increase their likelihood and examples of control measures for managing the risks of harmful behaviours in the workplace. It covers identifying psychosocial risks, assessing and controlling the risks, reviewing control measures, recording the risk management process and outcomes, and carrying out investigations.

Meanwhile, whatever the current legal situation, there is also a moral and business case for tackling bullying and harassment. These behaviours can have a devastating impact on workers, resulting in stress, anxiety and depression, a negative impact on work performance and even forcing some to leave their jobs. And they can have serious consequences for organisations, including increased sickness absence, reduced productivity, high staff turnover and low staff morale.

The NHS joint staff council health, safety and wellbeing group and NHS employers estimate that “toxic behaviour” costs the health service more than £2 billion a year, so tackling workplace bullying and harassment is also good for the bottom line.
 

Andrea Oates is a freelance writer who writes on current affairs from a trade union perspective and specialises in health and safety at work and work-based learning and training.