THE title of Bullying — Britain’s Secret Shame, a BBC series being screened this week, is not sensationalist. Bullying has consistently been shown by workplace surveys in all sectors to be the biggest concern for all employees. And it shows no signs of going away.

The seriousness of the problem was formally recognised last month with the announcement by Patricia Hewitt, the Trade and Industry Secretary, that £1 million was to be given to fund the biggest study yet into bullying at work. The results are likely to make unpleasant reading.

Why is bullying — behaviour that in extreme circumstances can drive people to suicide — so prevalent? It can take many forms, sometimes physical, sometimes mental. In some cases there will be a link to characteristics of the victim, for example, sex discrimination or race discrimination. In other cases the bullying may be based on the simple and brutal assessment by one person that he or she is bigger or more important than another.

Many people may be surprised to learn that in the UK there is no specific legislation that addresses the issue. However, victims have several legal options. Serious bullying may give rise to criminal liability on the part of the perpetrator because it may amount to an assault or a breach of the Protection from Harassment Act 1997. This has been used when the victim has been stalked, itself a form of mental bullying.

At work, an employer has a general duty to provide a safe place and system of work for all staff. An employer in breach of the duty of care may face claims in the civil courts. Similarly, there may be claims for constructive dismissal — when an employee resigns in response to an employer’s fundamental breach of contract. The term most commonly relied upon by bullied employees is the employer’s implied duty to maintain trust and confidence. A breach may arise where the employee is bullied or harassed by the employer, or where the employer fails to protect the employee against harassment by colleagues.

Many people believe that bullying happens elsewhere — certainly not at their place of work. An office manager may consider that it might occur in a factory. The factory supervisor may consider that it might happen in a builder’s yard. The foreman in the builder’s yard might think that it will happen in a big office.

Identifying bullying may not be straightforward — the perception of being bullied is usually subjective. What may be regarded as strong management in one organisation or industry could be seen as bullying in another. While constructive criticism should not be viewed as bullying, neither should the pretext of a strong management style be used as a disguise to bully employees.

The UK has extensive anti-discrimination legislation. This has been the main vehicle for bringing claims against employers. However, it is necessary to associate the bullying, or harassment, as it is more often referred to, with a ground of discrimination. This means that shouting and intimidation by itself would not be covered, but acts or comments that are connected to sex, race, disability, religion or sexual orientation would be.

Of course, bullying is not confined to adults. It is found at both home and school. Social services provide support for families and where abuse is found, prosecution is a possibility under the criminal law. But the cases that reach the attention of the authorities are believed to be the tip of the iceberg. School life, with its own inner community for children, can prove to be the cruellest of settings for bullying.

Similar to the responsibilities of an employer, the school can be held liable for not providing a safe environment for children, discrimination or breach of contract. Just as with any public body employer, a state-run school, in contrast with a privately run enterprise, will also have to show compliance with the European Convention on Human Rights. Article 3 provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

What can be done? Awareness has to be increased. In the workplace, this will mean preparing a policy and telling staff about it, with the employer giving examples of the kinds of unacceptable behaviour. The key message should be one of zero tolerance of bullying or harassment.

Discrimination legislation provides that employers will not be liable if it can be shown that “reasonable steps” have been taken to prevent harassment. This means that the conscientious employer, who has used his best endeavours to prevent harassment, will be exonerated. It also acts to encourage all employers who have not yet undertaken such steps to do so as soon as possible.

Whatever the legal obligations and workplace policies, we all have a moral obligation to try to prevent bullying. The consequences for the victim — whether the bullying is in the form of insulting comments or physical threats — can be devastating. In addition, the cost of bullying in the workplace in terms of lost productivity, legal claims and bad publicity for the employer should also provide sufficient reasons to tackle the problem head-on.

The author is a partner and London head of employment at Halliwell Landau. She also comments on the implications of bullying in Bullying — Britain’s Secret Shame.

The series is shown each day this week at 12.30pm on BBC One.

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