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27 Nov 18

Bullying and harassment of NHS doctors, dentists, civil servants and House of Commons staff revealed in 3 separate reports in 2018. How big is the problem in the public sector, and what can be done?

November 27, 2018

The issue of sexual harassment, an extreme abusive form of bullying, went viral this year following the revelations made by the #TimesUp and #MeToo movements, powered by a belief that ending the silence collectively can start to change things.  Attracting less publicity but no less shocking has been the extent of bullying in the UK’s public services highlighted in separate reports by the British Medical Association (BMA), the First Division Association (FDA) and Dame Laura Cox’s report into the treatment of staff in Parliament.

What is bullying?  There is no legal definition but ACAS define bullying and harassment together as  “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.” Despite this definition, when considering harassment it is the deed itself and the impact on the target that matters, not the intention of the perpetrator.

The BMA began a bullying and harassment project in 2017 and reported its findings this autumn. When asked, “Is there a problem with bullying, undermining or harassment in your main place of work?”  10 % of the doctors surveyed said  Yes, often, and 29% said Yes, sometimes. When doctors were asked “Why do you think there is or may be a problem with bullying, undermining or harassment in your main place of work?” the 3 top reasons given were “people are under pressures” (64%), followed by “difficult to challenge as behaviour comes from the top (62%) and “people who are bullied undermined or harassed are too afraid to speak” (59%). One in five had experienced bullying in the past year. The effects on individuals were brutal, with reports of doctors feeling sick and emotionally broken, losing sleep, and confidence in their clinical decision making. Some felt ashamed, finding it difficult to say anything to anyone. It is clear bullying is a health hazard.

Doctors are less likely than other NHS staff to report incidents of bullying than other NHS staff. Only one in three hospital doctors and dentists reported it, and only a quarter of junior doctors. Being afraid to speak up can cost lives. This was acknowledged by the Freedom to Speak Up review by Sir Robert Francis in 2015 after the Mid Staffordshire NHS FT scandal which exposed unacceptable levels of patient care and a staff culture that deterred staff from raising concerns. Despite the fact that every NHS employer will make public statements about valuing staff and will have a Freedom to Speak up guardian in place, it is clear from the BMA report  that doctors fear speaking out.

The FDA reported on a survey of its civil service membership earlier this year.  45% of the respondents said that they had personally experienced harassment by a colleague.  Only one third of respondents felt confident a harassment complaint against a colleague would be properly investigated. 40% had a “low” or “very low” level of confidence in the complaints process.

Parliament has even worse problems revealed in Dame Lara Cox’s report into the treatment of staff employed in the House of Commons.  She spoke to 200 current and former House of Commons staff 68% of those who came forward with information were women.

She  reported finding “a culture, cascading from the top down, of deference, subservience, acquiescence and silence, in which bullying, harassment and sexual harassment have been able to thrive and have long been tolerated and concealed.” She was told “management remains disproportionately influenced by a small number of individuals drawn from a limited number of public schools and the Oxbridge universities. The organisation of the institution remains traditionally hierarchical, with significant power held by MPs and by senior Clerks to the detriment of the lower grades and those employed outside of the Clerks’ Department…. There is a calculated aloofness and a kind of sniffiness at anything external, which is part of the template for sustaining the institution and concealing its problems.”

She reports, “Some areas of the House were described as having a particularly bad reputation for sexist or racist attitudes and “banter”, or were known to have “bad or dysfunctional management,” or a “macho culture in which women in particular are not welcome,” or where some managers run their teams “like fiefdoms, while others turn a blind eye” and “regard themselves as untouchable.” Some women described always being asked to buy the coffee or make the tea, or take notes of meetings, for example, or being humiliated in front of colleagues by comments about why they needed to work or have a career if they had a husband, or “why do we need another woman in here, we already have two.” Some members of staff from “BAME” backgrounds reported racist abuse, or being frequently challenged as to their right to be in particular parts of the estate. In such conditions can bullying and sexual or racial harassment flourish and the accounts indicate some serious problems in some areas. “

There were very low levels of trust in the complaints procedures which in any event were considered to be inadequate by Dame Laura.

What is the way forward.

  • It is clear policies alone will not solve embedded problems of culture. Senior management needs to address the power dynamics of the organisation and take appropriate practical steps to support the “ zero tolerance “ values set out in public statements, including education and acceptance of the need to change. Active monitoring, anonymous surveys collating feedback from occupational health and exit interviews can help to flag concerns.
  • Employees clearly need to have robust reassurance that if they take the risk of reporting bullying that they will be supported and the issue will be properly addressed. The absence of complaints does not imply there is no problem – it may mean that staff are too intimidated to speak out or engage with a daunting formal process. Employees should have access to a designated confidential mentor as an alternative or addition to a formal process.
  • Individuals have to weigh their position carefully. It would be a wise precaution to join a union. If there are formal procedures in place, these should be investigated and followed. There may be processes for confidential reporting and mediation.  Good record keeping is crucial.
  • Employees who suffer a personal injury, including stress related illness may be able to sue the employer. Employers have a binding legal obligation to protect the health safety and dignity of all workers under European and UK legislation. The EU Health & Safety Framework directive obliges employers to “ensure the safety and health of workers in every aspect related to work”. The Health and Safety at Work Act 1974 requires employers to ensure the health and safety of employees, including protection from violence.
  • Employers have a common law obligation to establish a safe system of work. This includes taking reasonable steps to prevent foreseeable harm, including serious acts of bullying and harassment. Employers who breach those duties risk being sued for damages by injured employees for breach of duty of care and individual members of staff could be sued for assault in grosser cases.
  • Employees guilty of acts of harassment risk being criminally liable under the Protection from Harassment Act 1997 which makes it unlawful for a person to pursue a “course of conduct” ( 2 or more incidents) which they know or ought to know would be harassment. This includes causing alarm or distress, and “conduct” includes speech.
  • Employees with protected characteristics under the Equality Act can bring claims in the Employment Tribunal for harassment and discrimination while remaining employed against both employer and any perpetrator personally. Compensation includes a potential award for injury to feelings.
  • Employees who cannot stand the treatment any longer can resign and claim constructive dismissal in the Employment Tribunal. This should be a last resort and advice should be taken before taking this step. Proper legal advice should be taken before entering into “without prejudice” negotiation or signing any offered settlement agreement.

A copy of the BMA report can be found here

Dame Laura Cox’s report can be found here

 

Jean Sapeta

Consultant

For advice on any issues arising contact

jean@ eastwoodslaw.co.uk

0203 137 4805