Being a surgeon or dentist requires far more than just technical excellence. How surgeons and dentists behave shapes the culture we work in, those we train and the profession as a whole. Negative behaviour such as bullying, harassment, discrimination and undermining will always threaten to undermine the wellbeing and mental health of victims, and the quality of patient care.
However, these behaviours are treated differently in law, and so there are different remedies and actions recommended by the College for Fellows and Members seeking to pursue legal action. The following section defines each behaviour and the relevant law.
ACAS defines bullying as: "offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient."' Examples of bullying at work could include constantly criticising someone's work, spreading malicious rumours about someone, constantly putting someone down in meetings, deliberately giving someone a heavier workload than everyone else, excluding someone from team social events and putting humiliating, offensive or threatening comments or photos on social media.
The bullying perpetrator can be a work colleague or peer, a manager, or a subordinate. Bullying can lead to increases in individual stress levels. The Health and Safety Executive’s Management Standards on stress states that relationships can be a potential risk, increasing strain on an individual if not managed properly.
Bullying itself is not against the law. However, employers can be liable for bullying where it breaches the implied contractual term of trust and confidence (breach of contract or constructive dismissal claim), or the common law duty of care (personal injury claim) or constitutes a criminal offence.
Whilst bullying itself is not against UK law, UK harassment is unlawful under the Equality Act 2010. which outlines nine protected characteristics that are legally shielded from discrimination, harassment, or victimisation. These characteristics are age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, and sexual orientation.
In the workplace, harassment is primarily governed by the Protection from Harassment Act 1997. This requires at least two occasions of such behaviour inside or outside the workplace to constitute a criminal offence.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 also gives UK employers a mandatory legal duty to take proactive, reasonable steps to prevent sexual harassment of their employees. This duty is anticipatory, requiring employers to identify risks and prevent harassment before it happens, rather than just reacting to incidents.
In Scotland, the Protection from Harassment Act 1997 provides a route for civil claims (and criminal proceedings) in cases of severe harassment or stalking, even if the conduct does not relate to a protected characteristic.
According to the Chartered Institute of Personnel and Development, harassment occurs where unwanted conduct related to a protected characteristic violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment, or where a person is treated less favourably because he or she has either submitted to, or rejected, harassment which has this purpose or effect.
Harassment can take many forms including verbal and written, electronic and mobile phone communications (for example, social media posts and texts), physical contact, display of offensive material, intimidation (for example pressure for sexual favours) and intrusion (for example stalking).
Employers are liable for acts of harassment conducted by their employees ‘in the course of employment,’ regardless of whether the employer knew or approved of an employee’s actions. Employers can defend a harassment claim by showing that all reasonable steps were taken to prevent harassment occurring. However, where the act of harassment is connected with the employment relationship, there may also be a civil claim for damages against the harasser and the employer.
Harassment carries a fine of up to £5,000 or imprisonment for up to six months, or where there is a fear of violence, up to five years in prison, and/or an unlimited fine. Under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employment tribunals are able to increase compensation by up to 25% in sexual harassment cases if the employer failed to take reasonable steps and the Equality and Human Rights Commission (EHRC) can also take enforcement action against organizations that fail to comply.
Sexual Harassment is defined in the Equality Act 2010, section 26(2) and (3). It includes conduct by person A of a sexual nature that has the effect of violating person B’s dignity or creating an intimidating, hostile, degrading, or offensive environment for B, even if A did not intend this. Whether conduct constitutes sexual harassment will depend on both B’s perception and whether it is reasonable for B to have perceived A’s conduct in that way. It may also be sexual harassment by A if A treats B less favourably because B did not submit to A’s sexual advances. Some examples of sexual harassment include (this list is not exhaustive):
gesturing or making sexual remarks about someone’s body, clothing, or appearance
asking questions about someone’s sex life
telling sexually offensive jokes
stalking
voyeurism
making sexual comments or jokes about someone’s sexual orientation or gender reassignment.
displaying or sharing pornographic or sexual images, or other sexual content
touching someone against their will
Sexual harassment can happen to anyone regardless of their sex or the sex of the harasser and can be conducted by individuals of any gender identity or sexual orientation. A single incident is enough to constitute sexual harassment. Someone may be sexually harassed even if the conduct was not directed at them but because of the environment it creates for them. It also includes treating someone less favourably because they have submitted to or rejected sexual harassment in the past.
Under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers must take reasonable steps to prevent sexual harassment. These include developing an effective anti-harassment policy, implementing training on what sexual harassment in the workplace looks like and undertaking a risk assessment. The Equality and Human Rights Commission have produced guidance on what type of actions employers should be taking.
In Northern Ireland, there are a series of anti-discrimination laws and protection from harassment, including sexual harassment. These include the Protection from Harassment (Northern Ireland) Order 1997, which makes it both a criminal offence and a civil wrong to pursue a course of conduct that harasses another person or causes them to fear violence, and the Sex Discrimination Order 1976 where harassment shares the same definition as the Equality Act 2010. Stalking is explicitly recognised as an offence under the Protection from Stalking Act (Northern Ireland) 2022, which targets fixated, obsessive, unwanted, and repeated behaviours.
Under the UK Equality Act 2010, legal discrimination is defined as treating a person "less favourably" than others because of a protected characteristic. Under the Act, it is unlawful to discriminate, harass or victimise someone because they have or are perceived to have a “protected characteristic” or are associated with someone who has a protected characteristic.
There are several types of discrimination.
Direct discrimination is where one is treated less favourably than someone else because of a protected characteristic.
Direct discrimination by perception is when one is treated less favourably because they are incorrectly seen as having a protected characteristic.
Discrimination arising from disability is when a disabled person is treated unfavourably because of something connected with their disability when this cannot be objectively justified.
Direct discrimination by association is when someone is treated less favourably than another person because they are associated with a person who has a protected characteristic.
Victimisation also occurs when someone is treated unfavourably because they have taken some form of action relating to the Equality Act such as making a complaint under the Act or supporting somebody who is doing so, such as appearing as a witness.
NHS England's sexual misconduct policy defines sexual misconduct as "uninvited, unwelcome or non-consensual behaviour of a sexual nature" . It is behaviour that can reasonably be interpreted and/or perceived by an individual as sexual and which offends, embarrasses, harms, humiliates, or intimidates an individual or a group.
Sexual misconduct can involve elements of harassment, violence and abuse and can be physical, verbal, or visual and via different mediums, such as through email or phone messages.
Some forms of sexual misconduct may also constitute criminal offences under a range of legislation including but not limited to the Sexual Offences Act 2003 and the Protection from Harassment Act 1997. Potential criminal offences include sexual assault, rape, stalking or disclosing private sexual images to cause distress (revenge pornography).
Other commonly accepted definitions and examples of sexual misconduct are listed below (this list is not exhaustive):
Sexual violence/sexual assault encompasses acts ranging from verbal harassment to forced penetration and an array of types of coercion from social pressure and intimidation to physical force or other sexual offences, such as groping and/or forced kissing, which may be criminal offences.
Sexual harassment as defined by section 26(2) and (3) of the Equality Act 2010 and can include gesturing or making sexual remarks about someone’s body, clothing or appearance, asking questions about someone’s sex life, telling sexually offensive jokes, stalking, voyeurism, making sexual comments or jokes about someone’s sexual orientation or gender reassignment, displaying or sharing pornographic or sexual images, or other sexual content and touching someone against their will.
Sexual harassment can happen to anyone regardless of their sex or the sex of the harasser and can be conducted by individuals of any gender identity or sexual orientation. A single incident is enough to constitute sexual harassment and someone may be sexually harassed even if the conduct was not directed at them. It also includes treating someone less favourably because they have submitted to or rejected sexual harassment in the past.
What some people might consider as joking, ‘banter’ or part of their workplace culture is still sexual misconduct if the behaviour is of a sexual nature; it is uninvited and/or it is unwanted or it violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them.
Workplace Violence
Employers have a general legal duty of care to protect staff from violence at work and are subject to legislation covering violence at work.
The overarching Health and Safety at Work Act (1974) states that "the duty of every employer is to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” Failure to comply with the requirements under the legislation is a criminal offence that often leads to action by the enforcing authorities such as the Health and Safety Executive (HSE).
Other relevant legislation includes.
The Worker Protection (Amendment of Equality 2010) Act 2023 (England, Scotland, and Wales).
Management of Health and Safety at Work Regulations 1999
Management of Health and Safety at Work Regulations (Northern Ireland) 2000
Health and Safety at Work (Northern Ireland) Order 1978
The Assaults on Emergency Workers (Offences) Act 2018 also covers 'emergency' NHS workers in England and Wales.
The Assaults on Emergency Workers (Offences) Act 2018 applies when a person commits a common assault or battery (assault by beating) against an emergency worker defined as "person(s) employed for the purposes of providing, or engaged to provide NHS health services, or services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public." The Act allows for a maximum sentence of two years imprisonment for more serious assaults which do not amount to ABH or GBH.
A similar Emergency Workers (Scotland) Act 2005 (Modification) Order 2008 allows a maximum imprisonment for up to 12 months, a fine up to a prescribed sum, or both. No such Act exists for Northern Ireland and there are discrepancies for those working in the independent healthcare sector.
The NHS Constitution for England sets out the extensive legal rights that help to ensure staff have healthy and safe working conditions and an environment free from harassment, bullying, or violence. Similarly, the NHS People Plan articulates the statutory duty of care incumbent upon NHS leaders to prevent and control violence in the workplace, so that staff never feel fearful or apprehensive about coming to work.
NHS England's Violence Prevention and Reduction Standard also supports NHS organisations to take action to prevent and reduce violence and abuse against staff.
The Role of the Employer
In the UK, NHS Employers state that every NHS organisation should treat bullying as gross misconduct and have policies and procedures that facilitate informal resolution, mediation, and early resolution of conflicts.
However, as Professor Michael West shows, "every interaction by every leader at every level shape the emerging culture of an organisation." NHS England also state, "leaders must understand the decisive importance of their own role and behaviours in creating a compassionate and inclusive culture."
Therefore, everyone has responsibility for creating positive and inclusive cultures, and these should be backed up by learning and development programmes to promote respectful relationships such as our Addressing Conflict in Surgical Teams (ACT) course.
Proactive initiatives such as values-based recruitment, effective and timely appraisals, fair and transparent application of absence management or flexible working policies and raising concerns policies also have a vital role to play.