Even non-cricketers will have seen the recent headlines surrounding ex-England batsman Kevin Pietersen’s controversial autobiography. In his book, Pietersen makes allegations of bullying within the England team and names senior members of the squad as the main perpetrators. Amongst much else, he claims he was left crying and broken by a spoof Twitter account that parodied him.
The claims made have split English cricket down the middle – leading to days of claims and counterclaims both in support of and critical of Pietersen. The England dressing room scenes he describes, where fielders are routinely humiliated by bowlers for dropping a catch, fall squarely within the accepted definition of bullying – offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.
Pietersen was employed by the ECB under a central contract but most employees cannot publish a “tell all” autobiography. If the bullied cricketers he describes were “normal” employees and had been forced to seek redress through more pedestrian means, how would they have fared?
In an ideal world, all employers would have in place a clear policy in relation to bullying, making it clear that it will not be tolerated and the potential consequences of such behaviour. It would also make clear how a victim of bullying should report it and provide appropriate support. Sadly, in reality, many employers have no such policy in place, or if they do, it is not properly enforced, meaning victims of bullying often have little or no recourse internally and a culture of bullying infiltrates the workplace. In such circumstances, there is also limited legal recourse externally, as an employee cannot bring a claim in the employment tribunal just for “bullying”. There has to be an extra element.
For an employee to have grounds to bring a complaint against an employer in the employment tribunal for bullying, the claim would normally need to amount to “harassment” as defined under the Equality Act 2010. That definition, “unwanted conduct related to a relevant protected characteristic [our emphasis], 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”, is problematic.
The requirement that the behaviour relate to a “protected characteristic” is the main barrier to many claims. It means that an employee who is not being harassed or bullied for a reason relating to their age, sex, race, gender, disability, religion or belief, sexual orientation or gender reassignment, would not normally have grounds to bring a claim in an employment tribunal. However severe the abuse, without resigning and claiming constructive dismissal on the grounds that the employer breached trust and confidence by failing to take steps to protect them, there is no way for an employee to bring a tribunal claim for bullying.
Presumably, none of the Pietersen’s alleged “victims” suffered abuse on the grounds of a protected characteristic so would have been unable, realistically, to take their claim to an employment tribunal without losing their job. Resigning to bring a constructive dismissal claim is a big step, with huge financial consequences, and one few employees feel able to take, leaving the employment tribunal door effectively closed to those who have been bullied for reasons not related to a protected characteristic.
A bullied employee could, alternatively, bring a claim in the civil courts for harassment contrary to the Protection of Harassment Act 1997. Unlike tribunal claims under the Equality Act, such claims don’t have to relate to a protected characteristic, and, unlike constructive dismissal, the employee doesn’t need to resign. The difficulty with such a step is that the civil courts, unlike normal practice in the employment tribunals, are usually a costs shifting forum. The bullied employee thus runs the risk of being forced to pay the employer’s legal costs were they to lose the case. Rarely will an employee have the funds to take that risk.
Kevin Pietersen’s book provides a colourful example of the type of bullying which can be particularly difficult to eliminate, where a culture of bullying has become ingrained in the workplace and victims are often told to “toughen up”. Employers are of course responsible for preventing bullying and harassment – they’re liable for any harassment suffered by their employees unless they have taken such steps as are reasonably practicable to prevent this. More importantly though, bullying can have an adverse impact on workplace morale and, like the England cricket team last winter, a drop in performance. So, it is essential that employers, including professional sports teams, have clear rules and internal procedures in place to address bullying, before it escalates.