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Workplace bullying never seems far from the headlines. The Maskell Bill before Parliament could be a landmark development here. It would define workplace bullying in UK law for the first time, enable workers to pursue bullying claims in law, establish a Respect at Work Code with minimum behaviour standards, give the Equalities and Human Rights Commission workplace investigation powers, and provide for enforcement actions.[2]
This article examines the Bill’s potential impact by comparing the UK position with France’s 2002 law criminalising bullying. It also explores its social impact — particularly through the subsequent flood of fiction that has contributed to a profound debate and public understanding of the genesis, root causes and characteristics of workplace bullying.[3] The article concludes by suggesting how the Bill might be rendered more effective by learning from the French experience.
Context
Leading French organisational psychotherapist, Marie-France Hirigoyen, argues bullies are:
‘ narcissistic perverts [who] do harm because they don’t know any other way to exist. They were themselves harmed as children and tried to keep themselves alive. This transfer of pain allows them to value themselves at the expense of others.’ [4]
It is difficult to judge how extensive workplace bullying really is because survey evidence is based largely on workers’ perceptions. However, it exists across all modern economies.[5] It is more psychological than physical , and reflects potentially stress-inducing organisational practices i.e.:
· Complex digital monitoring and control systems with senior management based far from workers who are unaware when they are actually under surveillance.
· Performance management processes where either workers’ influence over quantifiable targets may be limited, or performance is assessed using qualitative criteria in behavioural competencies.
· Increase in temporary work contract use.[6]
· Encouraging competition between workers through team incentives that put peer pressure on weaker performers.
UK situation
Research shows UK employment tribunal claims of bullying allegations increased 44% from 581 to a record high of 835 in the 12 months to June 2023.[7] There is currently no UK legislation that specifically defines and prohibits workplace bullying. However, this does not mean that employers have no legal responsibilities here, nor that protections for bullying targets don’t exist.
In general conversation the words ‘bullying’ and ‘harassment’ are used interchangeably. However, in UK law ‘harassment’ is specifically:
‘unwanted conduct related to a relevant protected characteristic, with the purpose of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment’. (Equality Act 2010)
It is discriminatory bullying against an individual within a defined ‘protected characteristic’ including age, disability, race, religion, and sex. It generally gives rise to a civil claim before an employment tribunal. It may also constitute a criminal offence where, for instance, data protection and privacy laws are breached. Where not discriminatory, there is no legal defence against bullying based on ‘protected characteristics’. Yet, it can still take place and needs to be addressed.
French situation
French legislation originates from an study by Marie-France Hirigoyen who has spent many years counselling individuals traumatised by psychological intimidation.[8] The 2002 law on ‘le harcèlement moral’ makes bullying a criminal offence with potential fines for organisations and individuals and imprisonment of perpetrators. [9] It states:
‘No worker shall be subjected to repeated acts of psychological bullying whose purpose or effect is to degrade their working conditions and which are likely to infringe their rights and dignity, to alter their physical or mental health or to compromise their career future.’
This definition includes any behaviour that seeks to intimidate an individual by damaging them physically and/or mentally. The law encompasses behaviour detrimental to an individual’s sense of self-respect. It applies where the behaviour complained of is:
· Part of a pattern, not a single act.
· Intended to, or have the effect of, causing damage which violates individual rights and dignity.
· Likely to harm the target’s physical or mental health, or compromise future employment prospects.
Claimants are protected from dismissal and unfavourable treatment.
Appeal Court decisions have shaped application of this legislation by examining both bullying behaviour and the context of each case. For instance, since 2016, employers have been able to absolve themselves of responsibility for bullying where they can demonstrate all preventive measures have been taken. [10]
Research suggests that courts have been cautious in decision-making here. For instance, in 2011, of 4000 cases submitted to the Appeal Court in the Aquitaine region only 38 were considered bullying in law. [11].Most targets were private sector white-collar women aged 44 plus. In 76% of cases, the negative impact on social relationships was cited as a factor in bullying.
The courts have appeared reluctant to impose the ultimate sanction of incarceration. My research has only uncovered three such cases. The leading case involving sentencing remains ‘institutional bullying’ at France Telecom (now Orange) where in 2008–2009 some 30 workers were alleged to have committed suicide for work-related reasons. On 20/12/2019 the Criminal Court fined the company €75,000 (£65,000) and sentenced its three most senior executives each to 12 months’ imprisonment and imposed fines of €15,000 (£13,000) for creating a ‘draconian programme of workforce reduction’ leading to these suicides. However, in 2020 the Court of Appeal converted all periods of imprisonment to suspended sentences. it remains unclear what extreme behaviour would lead a court to apply imprisonment under the law, given the harrowing nature of this case that illustrates a culture of systemic bullying and psychological violence. [12]
In September 2018, I interviewed Marie-France Hirigoyen about her work and the effectiveness of the law. She said that, for all the media attention, she felt it had only had a marginal impact. She cited the case of a ‘well-known journalist,’ marginalised at work, who took their employer to court for bullying and won just €9,000 (£7,800) in damages. She said she was helping this individual handle the ‘psychological fallout’ of this decision.
This assessment highlights the challenges of legislating here i.e.:
· The persistent power imbalance between perpetrator and target.
· Bullying itself is the start of a process. Many years of psychological suffering can follow for the worker and their family.
· Legislation needs to specify unacceptable behaviours and prohibit employers from sidestepping responsibility to protect workers by arguing they were powerless to stop bullying.
The power of fiction
The proposed Respect at Work Code could incorporate specific prohibited bullying behaviours. These might be drawn initially from those lived experiences of workers described in modern French fiction. This is not fanciful. My research lists more than 20 concrete behaviours. They represent the most comprehensive list I have encountered anywhere in my research. They include:
· Deliberately failing to invite a worker to an important meeting
· Prohibiting casual conversation between workers
· Deliberately using vague statements about job security
· Mocking personal taste and physical traits
· Deliberately employing vague statements about performance expectations
· Deliberately failing to copy in on an important email
Enforcement
Given French experience and current overcrowding in English and Welsh prisons, incarceration for bullies under UK law seems unlikely. French courts view prison as an extreme penalty, and, even in the dire case of France Télécom, preferred to order suspended sentences along with fines. Of course, this ruling was also a corporate public relations disaster and probably rendered unemployable the senior managers involved.[13]
Concluding comments
A new UK law could set minimum standards and enforce compliance after the event. However, the most effective way of managing workplace bullying is to stop it from happening in the first place through measures like positive role modelling by senior management and staff awareness training. Let’s also remember, bullying costs organisations money, including through increased labour turnover, reduced staff morale and higher sickness absenteeism.
All this means that, in the final analysis, whatever the Maskell Bill seeks to achieve, it can only contribute to controlling workplace bullying. It is unlikely to eradicate it.
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[1] Martin is a retired HR director, management consultant and interim with some 40 years’ practical experience, working in the UK and overseas. He holds a PhD in Modern Languages (Leeds). And two Masters’ degrees. His PhD thesis is published as Bastards at Work: Universal Lessons on Workplace Bullying from Contemporary French Storytelling. Peter Lang, 2021. He is a member of the International Association on Workplace Bullying, a global network of researchers, and a former Chartered Fellow of the CIPD.
[2] Rachael Maskell MP (York Central) (Lab/Co-op), Bullying and Respect at Work Bill, tabled 11/ 07/2023, Hansard, https://hansard.parliament.uk/commons/2023-07-11/debates/7435C28E-7F68-4747-BD9C-EDCA0824B2AD/BullyingAndRespectAtWork
- Commons: 11 July 2023
- Commons Chamber
- Bullying and Respect at Work
[3] Since the year 2000 there have been at least 80 novels on workplace bullying, published in France along with around a dozen films and a similar number of stage plays.
[4] Le harcèlement moral ( La Découverte, 1998), p. 127.
[5] Workplace Bullying and Harassment: New developments in international law, Elen Pinkos Cobb, Routledge, 2017
[6] The Rise of Temporary Work in Europe, Bas ter Weel, Springer Science+Business Media, 22/10/2018 LLC, part of Springer Nature 2018, https://doi.org/10.1007/s10645-018-9329-8
[7] Workplace bullying claims hit record high, data shows, Yoana Cholteeva, People Management, 11/07/2022
[8] Le Harcèlement moral: la violence perverse du quotidien, Marie-France Hirigoyen, La Découverte, 1998
[9] La loi de modernisation sociale of 17/01/2002, incorporated into Penal and Labour Codes, as well as public service legislation.
[10] Cass. soc. 08/06/2016, n° 14–14.418
[11] Qualification juridique du harcèlement moral en France. An Empirical Study of 2011 Rulings by the Court of Appeal for the Aquitaine Region, Gaëlle Encrenaz and Loïc Lerouge 21/1/2019. https://doi.org/10.4000/pistes.6348
[12] La raison des plus forts : Chroniques du procès France Télécom, Eric Beynel and Claire Rober, Atelier 2020
[13] Prison places in England and Wales are ‘bust’, says governors’ union chief, Haroon Siddique, The Guardian,09/10/2023
