Detailed research into workplace bullying has been carried on now for more than 20 years and has revealed a great deal about its impact. Not only does it have a severe effect on the personal wellbeing of the victim but it can also lead to significant lost productivity, absenteeism, increased staff turnover and higher rates of illness and accidents. The true costs are difficult to determine but Dr Sabir Giga of Bradford University has estimated the cost of workplace bullying to the UK economy in 2009 to be £13.75bn.
Two decades ago the only country to have implemented specific workplace bullying legislation was Sweden. In the following years a growing international patchwork of common, statutory, administrative and constitutional laws has developed, more often adapted from existing law than specifically drafted to address the issue.
One of the difficulties facing both legislatures and global employers is that workplace “bullying” can be hard to define. From sector to sector, business to business and even from office to office, what may be seen as ‘tough love’ or energetic encouragement in one circumstance can be seen as overly forceful, demeaning behaviour in another. This problem becomes much more complex across countries and cultures. For instance, a forceful and direct style of management communication might be considered completely acceptable in some jurisdictions while being regarded as inappropriately aggressive in others.
Clearly training plays a major part in limiting damage particularly if caused by cross cultural differences as staff move around a global organisation. However, from a legal and contract perspective how should global businesses address the question of bullying? Can global employers implement a single, business-wide anti-bullying policy or should they tailor it to suit each individual jurisdiction?
Diversity of Rules
The place to start is an overview of the current wide variety of legal responses to bullying.
As already stated, there is no generally agreed definition of “bullying”. There are a range of views as to the behaviours that constitute bullying. Can it be a one off incident or does it need to be repeated over time? Does it need to be frequent and escalating? Can there be bullying even if the individuals are at the same level in the organisation or does there need to be inequality of power?
Countries and even provinces within countries have adopted different legal approaches. These range from introducing specific legal restrictions (such as in Sweden, France, Belgium and certain states in Brazil and Australia) to reliance on the existing law to offer protection (such as Spain, Chile, Germany, the US and many Asia Pacific countries).
In some jurisdictions very specific rules have led to a high level of litigation. Quebec is an example of this. Meanwhile, in countries where no specific anti-bullying rules exist, claimants have nevertheless found a number of ways to seek redress and compensation. For instance, in Chile claimants have made use of the workers’ right to dignity set out in the Constitution.
Other jurisdictions, such as Spain, have made wide use of Health and Safety at Work legislation which has long since been extended to cover mental health. Bullying is treated as an occupational mental health hazard monitored by the labour inspectorate and subject to compensation.
In some jurisdictions bullying has to be linked to ‘discriminatory harassment’. This type of bullying depends upon proof of discrimination on one of the prescribed grounds such as race or gender. Bullying that has no element of discrimination does not necessarily give rise to a remedy.
What Should a Global Employer Do?
As we have seen, while there is no consistency in the world’s approach to regulating bullying, businesses increasingly recognise that workplace bullying has a very negative impact not only upon the individual but also on the employer organisation and its productivity. Employers are well advised to implement anti-bullying policies at work for this reason alone.
How should this be done across many jurisdictions and cultures?
In simple terms global employers tend to choose one of three options. The first option is to adopt a universal code on bullying, based on best practice. This involves imposing a high practice standard, often following a European model, on the whole organisation even though it may give workers in some jurisdictions rights beyond those required by their local laws. Businesses might do this for a number of reasons including reputation, ethical considerations or management consistency. They accept the risk of the increased liabilities that this approach may give rise to on the grounds that the benefits outweigh the risks.
The second option can be considered more risk averse. Having prepared a draft universal code of practice, the employer takes local legal advice to determine if the draft code creates employee rights beyond those required by local law or practice. Where this happens, the business might adjust the draft universal code to restrict those additional local rights whilst maintaining as far as possible a universal code structure.
Finally, if it proves too difficult to achieve the twin goals of universality and reduced risk, the solution is to establish bespoke local bullying policies. Although this method may create extra administrative burdens, these can be set against the lower risk of additional liabilities.