The Facts and the Law
The connection between bullying and undermining behaviour and patient safety has become clearer and less contentious over the past few years.
The evidence that this behaviour has a negative impact on the workings of a team or unit are growing. The problems of undermining and bullying extend well beyond surgery and dentistry and affect the whole healthcare sector. The Illing report, published in 2013, provides a comprehensive review of the literature on the occurrence, causes, consequences, prevention and management of these behaviours in the NHS.
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.
The RCSEd are committed to meeting the challenges facing our profession, to change the culture within surgery and build a safer, more respectful workplace that will be beneficial for patients, trainees and all our colleagues. This involves identifying and addressing unacceptable behaviours.
Bullying itself is not against the law, but harassment is (see below).
Bullying is viewed as unreasonable behaviour that creates risk to the physical or mental health or safety of an individual. This behaviour may be characterised as offensive, intimidating, malicious or insulting, or it may be abuse or misuse of power through means that undermine, humiliate or intimidate an individual.
It is behaviour that is repeated over time or occurs as part of a pattern of behaviour. A one off abrupt comment is not bullying. These behaviours are identified by the effect they have, not the intention of the perpetrator. Some practices in the workplace may seem unfair but will not necessarily amount to bullying.
Examples of bullying include:
- Unfair or unjust treatment
- Intimidation, derogatory or abusive interactions
- Denying training or promotion opportunities
- Spreading malicious rumours
This describes behaviour that has undermined professional confidence and/or self-esteem.
There are clearly differences in opinions as to what is classed as discrimination, bullying, harassment and undermining. Most will agree on extreme cases but there are “grey” areas. The Advisory, Conciliation and Arbitration Service (ACAS) publication, 'Bullying and harassment at work' provides some guidance on this.
This involves the unjust or prejudicial treatment of an individual with a particular attribute or personal characteristic, which can be legally protected. Legislation outlines a list of attributes and characteristics against which discrimination is unlawful, see below.
According to the Equality Act 2010, harassment is defined as 'unwanted conduct related to a relevant protected characteristic, 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.’
Examples of harassment include:
- Negatively highlighting an individual’s physical disability
- Derogatory comments about an individual’s beliefs
- Unwelcome conduct of a sexual nature
Protected characteristics in law are listed below:
- Gender reassignment
- Religion or belief
- Sexual orientation
- Marriage or civil partnership
- Pregnancy or maternity
There are remedies available to people who consider themselves victims of harassment:
Employment Tribunal (Employment Act 2010)
Employment tribunals hear cases where a claim is brought by an employee and their employee rights. The claim must typically be made within 3 months less one day of the incident. Initiating a claim costs the employee between £390 and £1200, but they are not liable for costs thereafter, even in defeat. There is a maximum award for unfair dismissal (this varies annually), and no limit for the award in a successful claim of discrimination.
Criminal Prosecution (Criminal Justice and Public Order Act 1994, England & Wales)
Victims of harassment can seek prosecution in the criminal courts. If found guilty, the maximum punishment is up to six months’ custodial sentence and / or £5,000 fine. In criminal prosecutions, allegations must be considered to be ‘beyond reasonable doubt’, and so the burden of proof may be high.
Civil Action (Protection from Harassment Act 1997)
Victims of harassment can also seek remedy through the civil courts. Here the burden of proof is lower than in the criminal courts, with each allegation required to satisfy ‘the balance of probability’ test in order for the claim to be successful.
Health and Safety breaches (Health and Safety Act 1974)
This legislation states that employers have a duty of care towards their employees. An employer can be liable if they have not taken reasonable steps to prevent a threat to the employee’s mental health.Unless they are able to demonstrate that they took these reasonable steps, the employer can be said to have failed in their duty of care and will be found guilty of a criminal offence. Cases can be heard in a magistrate’s court or a Crown Court.