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To mediate or not to mediate? when does influence become persuasion?

“Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.”

Isn’t that the definition that you are used to seeing?   It may well be the one in your organisation’s policy.

As I know you know, in lieu of a legal definition of bullying in UK, the definition above published by ACAS has been widely accepted and used by many organisations.   ACAS published this definition in its publications and guides for managers, employers and employees.  It is the definition I see reproduced in many organisations’ policies on bullying and harassment in the workplace.

And it is a definition I have criticised over the years.

The reason I have a difficulty with this definition is that it appears to state that bullying behaviour will only amount to bullying if the person who displayed the bullying behaviour intended to undermine, humiliate, denigrate or injure the person on the receiving end of their behaviour.  And of course, as we all know, “bullies” wake up every morning, rub their hands together with glee, and think about whose life they can make a misery that day.

Don’t they?

Well, actually, in my experience of investigating bullying and harassing behaviour in the workplace, no.  How well I remember the first thing one respondent manager, a Director in a multi-national IT company, told me when I interviewed him about the complaint of bullying brought against him by one brave soul in his team: “I’m not a bully. I may be direct, but I’m not a bully.”  It turned out that I upheld the complaint that his behaviour amounted to bullying of his subordinate (and in fact of his team of senior managers).

I have blogged before about the danger of labelling and stigmatising people as “bullies”.  I find it more helpful to focus on the behaviour, and the impact of that behaviour, rather than demonising people.  Because the truth is that we all have bad days.  We all have days when we behave in ways that later we regret (if afterwards we reflect on what’s happened and why.)  There are times when we all need to apologise, because in the heat of the moment or under the pressure of the demands placed on us, our behaviour fell below the standard that we would like to think is our ‘normal’.  And managers who are also leaders will reflect on their behaviour and recognise when they need to apologise and make amends.

In my experience bullying behaviour is rarely intended by the perpetrator to have the effect defined above.  But that doesn’t make experiencing that behaviour any easier for the recipient.  It still damages people’s lives and working relationships. But under the old definition, if that wasn’t the purpose, then it wasn’t bullying.

So I was so surprised, and absolutely delighted, to discover that ACAS’ published definition of bullying has changed.  And in fact, it changed some time ago; the change is not new.

The updated definition of bullying which I found in an ACAS Guidance Document dated October 2010 is:

“Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”[1]

What is significant about this?  The requirement for “intention” has gone.

The updated ACAS definition of bullying is now wider, and it focuses on the impact of the behaviour on the recipient.  In this it is now closer to the way the definition of harassment is constructed in S.26(1) Equality Act 2010.  This provides that behaviour that has either the purpose (‘intended’) or the effect (‘unintended’) of creating the hostile, intimidating environment or of violating dignity will both amount to harassment of the recipient.

Of course, there are safeguards in the latter case.  S.26(4) Equality Act also provides that in determining whether or not the conduct has had the ‘prohibited’ effect, one should take into account each of the following:

  • the perception of the recipient of the behaviour
  • the other circumstances of the case
  • whether it is reasonable for the conduct to have that effect.

This imports both objective consideration of ‘reasonability’ as well as consideration of the recipient’s subjective view into the definition, where the complaint relies on the conduct having had the prohibited effect.

It has always seemed to me that this is a sensible approach to apply also when considering whether or not certain behaviour constitutes bullying.  When delivering CMP’s Qualified Workplace Investigator training I recommend to delegates that they consider whether the behaviour had either the purpose or the effect of undermining, humiliating, denigrating or injuring the recipient of the behaviour (as well as the other elements of the definition); and where there is evidence that it had that effect, then to go on to apply the approach in S.26(4) and to consider both the complainant’s subjective perception of the behaviour and whether it is objectively reasonable for the behaviour to have had that impact.

In my view adopting this approach would enable organisations to tackle “abrasive” behaviour in the workplace more effectively.

I have to admit that I had missed this change; had you too?  Shout it out loud, HR officers.  This is really significant, and it should change your H&B policies.  I hope it will also have a very positive effect on changing workplace cultures too.

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