Workplace bullying - the next #MeToo?

Workplace bullying is making the headlines. With as many as four generations of employees working together there is scope for misunderstanding and disagreement over where the boundaries of acceptable behaviour lie. This can, perhaps, be especially challenging in a high performance sector such as financial services.

If recent events in Whitehall are anything to go by, we may be at an inflection point. The former deputy PM, Dominic Raab, defended his behaviour, making "no apologies for having high standards, for trying to drive things forward". This point of view might traditionally have been characterised as "robust" or "challenging". Tolerance for such a view has, seemingly, diminished materially.

Employee wellbeing and psychological safety are not new to industries which are the subject of regulation.

In the legal profession, the Solicitors Regulation Authority (SRA) recently published Guidance on 'Workplace environment: risks of failing to protect and support colleagues'. In summary:

• Certain "individuals and firms have failed to take appropriate steps to look after colleagues' wellbeing".
• The SRA reminded firms that they were obliged to "do everything they reasonably can to look after the wellbeing of those who work in and with the firm. And protect them from bullying, harassment, discrimination and victimisation, while supporting them so they can work safely and effectively".
• The SRA reiterated that Managers have a positive obligation to "challenge behaviour that does not meet this standard".
• The SRA recognised that "practising law can sometimes be pressurised and stressful, involving long hours, heavy workloads and dealing with challenging and demanding clients and situations", but was of the view that a career in law should nonetheless be "rewarding". It did not elaborate on what this meant in practice.

The SRA's Guidance bears similarities to the FCA's approach to the topic:

• The FCA has made it clear that "psychological safety is a characteristic of a healthy culture" and that non-financial misconduct, such as bullying, "is misconduct plain and simple".
• Such behaviour is therefore capable of giving rise to a conduct rule breach or be relevant to an assessment of an individual's fitness and propriety, particularly where an individual is in a management position.
• As Emily Shepperd (COO at the FCA) put it, "The FCA expects senior leaders to nurture healthy cultures in the firms they lead […] Where employees feel psychologically safe to speak up and challenge."
• The FCA does not view psychological safety and high performance as mutually exclusive. As it notes on the Psychological Safety page of its website, "Creating an environment where employees feel safe to share ideas and speak up where they see issues results in more productive and innovative businesses. It also reduces the potential for inappropriate risk taking or behaviour which can result in major incidents of misconduct, causing harm to consumers and markets."

In Australia, legislators have gone one step further. In New South Wales, for example, the Work Health and Safety Regulation 2017 has recently been amended to include specific requirements around managing psychological risks. This includes the obligation on employers to eliminate psychological risks so far as is reasonably practicable, or if that is not possible to minimise the risks so far as is reasonably practicable (see our briefing here). Further legislative change is expected across the country on this topic.

What's next?

Employee intolerance of what Mr Raab termed 'professional' behaviour appears to be on the rise. According to recent data published by Financial News, the FCA received a total of 189 allegations or complaints about financial services workers' behaviour since July 2021. Bullying, harassment and physical aggression accounted for 81 of these, compared to 40 related to sexual misconduct. However, enforcement action arising out of these complaints remains low.

With the FCA's long-awaited guidance on non-financial misconduct expected this year, it will be interesting to see how much discussion the regulator gives to psychological safety and where it seeks to draw the lines in the sand in relation to behaviour such as bullying.

Looking further ahead, legislators may seek to place behaviours such as bullying on an equal statutory footing to other forms of non-financial misconduct, such as discrimination and harassment.

Ashurst's Workplace Learning practice has been delivering training programs for over 15 years that address the risks of inappropriate workplace behaviours (read more here).

Authors: James Levy and Paul Ryan-Brown