The antics of Boris Johnson’s ministers will soon provide enough material to fill an entire course on employment law, and recent weeks have been a particularly rich seam of material. The Home Secretary Priti Patel has kept her position, despite a finding by retired civil servant Sir Alex Allan that she had breached the ministerial code in her conduct towards civil servants. Sir Alex found that “Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals”.
The Prime Minister and government supporters seized on the apparent fig-leaf that Ms Patel’s conduct, which extended to shouting and swearing, “may not be done intentionally to cause upset”.
Is inadvertence, then, a defence to conduct which amounts to bullying, when such complaints end up before an employment tribunal?
The question is difficult to answer because ‘bullying’ is a term unknown to the employment statutes. Leaving aside harassment under the Equality Act 2010 (which has either to be in relation to a protected characteristic, or to be unwanted sexual attention – neither of which Ms Patel is accused of), ‘bullying’ usually arises as an allegation of unreasonable conduct which underlies some other employment claim.
The most obvious example is in constructive dismissal, where the employee’s response to the conduct is to resign and claim unfair and/or wrongful dismissal.
The courts and tribunals initially struggled with the question of whether the touchstone of constructive dismissal should be reasonableness, which chimes with the test for ‘ordinary’ unfair dismissal under s94 of the Employment Rights Act 1996; or whether a stricter and more objective contractual test should apply.
Early decisions of the old Industrial Tribunal and of the EAT, and obiter comments by the Court of Appeal in Turner v London Transport Executive  ICR 952, appeared to endorse the view that conduct by the employer which was considered unreasonable by the Tribunal was sufficient foundation for a claim by an employee claiming constructive dismissal; this in turn meant applying what is now known as the range of reasonable responses test, of identifying whether the conduct complained of was open to a reasonable employer.
This was rejected by the Court of Appeal in Western Excavating (ECC) Ltd v Sharp  ICR 221. The analysis was simple. The employment relationship is ultimately a contractual one. The test for unfair dismissal itself depends on the circumstances of the termination, and is expressed to include “the employee terminates that contract [in] circumstances […] such that he is entitled so to terminate it […] by reason of the employer’s conduct” – words found in today’s s95 of the Employment Rights Act 1996, virtually unaltered from s3(1) of the Redundancy Payments Act 1965.
This does not answer, but rather begs the question: when is the employee entitled to terminate by reason of the employer’s conduct? The answer must be when there is a repudiatory breach of the contract of employment by the employer. That depends not on a reasonableness test – although reasonableness may provide evidence – but on an identifiable breach of an express or implied term.
Is it, then, possible for an employer to commit a repudiatory breach of contract inadvertently? The answer is obviously yes: the employer may be ignorant, for example, of a fundamental requirement of the contract, such as obligations concerning pay and benefits, or entitlement to particular statutory protections, and good faith is no defence (Roberts v Governing Body of Whitecross School, EAT 19 June 2012, unreported). So long as the breach is actually committed, and not merely proposed (which does not amount to repudiation and thus cannot found constructive dismissal: Financial Techniques (Planning Services) Ltd v Hughes  IRLR 32), these ‘innocent breaches’ are still repudiatory.
Where does bullying fit in? Bullying in this context is perhaps best conceived of as a breach of the implied term and confidence, undisputedly implied into every contract of employment since Malik v BCCI  AC 20. Shouting and swearing alone is, in appropriate surrounding circumstances, sufficient to amount to a breach, even in workplaces whose culture involves robust and salty exchanges (Cantor Fitzgerald International v Bird  IRLR 867, QBD).
It is worth considering the exact formulation of the term used by the House of Lords in Malik, that the employer must not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.
This would seem to support a ‘good faith’ or ‘inadvertence’ defence – “calculated and likely to” suggests a cumulative requirement including intention. But this is not, in fact, the correct formulation. The earlier authorities on which Malik was based used the formulation “calculated or likely to” (Woods v WM Car Services (Peterborough) Ltd  IRLR 347). In Baldwin v Brighton & Hove CC  ICR 680 the EAT held that the ‘and’ formulation was simply a mistake – the House of Lords had intended to use the ‘or’ formulation from Woods and had simply mistransposed the wording. Even Homer nods.
So the test is whether the conduct is calculated or likely to destroy or damage trust and confidence. Likelihood is an objective word and the test has to be an objective test. It follows that inadvertence does not amount to a defence, so long as the Tribunal is satisfied that the conduct is sufficiently bad to place mutual trust in jeopardy.
But further, in fact – consider the attractiveness of running such a defence in the Tribunal, that the employer was simply unaware that behaviour which was objectively oppressive and amounted to bullying was likely to have that effect on employees. This would probably not be well characterised as ‘innocent’ or ‘inadvertent’ behaviour, but (more likely) as a failure on the part of the employer to appreciate the effects of their actions. It is unlikely that this would take any Respondent’s case very far.
This post was written by David Green, a tenant of 12KBW.