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Lord Roper: My Lords, we all benefit always from the wisdom of the noble Lord, Lord Wedderburn, on these and related matters. But of course we do have a convention—that speakers speaking within the gap ought to restrict their remarks to four minutes.
Lord Wedderburn of Charlton: My Lords, I had thought that it was five minutes, and I had just reached
the four-minute mark. I shall, if I may, just complete my last sentences. I may get rid of some of the punctuation.The Bill recognises the intrinsic humanity of the worker and initiates a domestic legal application of the first principle of the International Labour Organisation: labour is not a commodity. The worker is flesh and blood, and for all the defects that are now being suggested in current Bills, the Government should adopt this Bill.
Lord Rotherwick: My Lords, I very much appreciate the noble Lord giving way, but I should like to reiterate the words of the noble Lord, Lord Roper. I believe that gap speeches are meant to last only four minutes, and we are now into the sixth minute. I appreciate and enjoy the noble Lord's comments, but we are now into the sixth minute.
Lord Wedderburn of Charlton: My Lords, I shall complete the sentence, as I understood noble Lords wished me to do. I am sorry that the noble Lord is so anxious for me to cease my remarks. Perhaps he could get the Opposition to consider the Employment Bill.
Lord Wedderburn of Charlton: My Lords, I am simply responding to the noble Lord's intervention.
Lord Rotherwick: My Lords, I am not anxious for the noble Lord to cease his remarks; I very much enjoy his constructive contributions. I am only asking for the procedures of this House to be followed. Thank you.
Lord Wedderburn of Charlton: My Lords, I imagine that the noble Lord's time is not counted as my time. However, I appreciate very much his enjoyment of what I say. I am very pleased to give him some pleasure for once.
I end by finishing my sentence. I hope very strongly that the Government will take up this Bill; that we will come to its Committee stage and make a good draft even better, perhaps by involving union representatives rather more than they have been in the current draft; and that the Government take away this draft and come back to us and include that in their legislation. I am sure that that will give a great deal of pleasure to us and, I am sure, to the noble Lord, Lord Rotherwick.
9.37 p.m.
Baroness Barker: My Lords, I begin by observing the hour of our discussion. I cannot help but wonder whether, were we fully paid employees rather than noble part-timers, we might by now be in contravention of one working-time directive or another. I should also declare an interest. I am a member of the Transport and General Workers Union.
I am indebted to the noble Baroness, Lady Gibson of Market Rasen, for bringing before us a Bill on this important and much overlooked subject, and for
giving us an opportunity to hear some very powerful speeches—such as that made by the noble Lord, Lord Wedderburn—on employment and the current rights and experiences of workers. Before dealing specifically with the subject of the Bill, however, I should like to thank the noble Baroness, Lady Gibson, for producing a Bill that is concise, to the point and clearly presented. It is such a refreshing change to consider proposed legislation that does not consist of endless Henry VIII clauses and rafts of regulatory powers. I hope that the noble Baroness will become an industry standard for her own benches.I read a great deal to prepare for this debate, everything from newspaper extracts to Hansard and the web. The more I read, however, the more I came to two realisations. The first was that, although I also regularly read employment law and personnel practice updates in the course of my employment, the issue of bullying had never featured in that reading. Secondly, I realised that, throughout the course of my working life in different organisations, things which I had witnessed were in fact bullying. I had never thought of that before. I understand that now and I appreciate the persistence of the noble Baroness in bringing this legislation before us. It is worthy of our discussion.
Other noble Lords have referred to the work in 1996 of Lord Monkswell in steering his Dignity at Work Bill through this House. For the first time that brought attention to something which hitherto had been completely unrecognised. That Bill was the product of research conducted by the union MSF. The debates on that Bill in your Lordships' House were, as ever, informed and incisive.
From those debates it became apparent that bullying in the workplace, although somewhat ill-defined, was widely understood, particularly by employees who had either experienced it themselves or had witnessed it happening to others. Those debates also began to set out the incidence of bullying at work. Other noble Lords have made reference to a study published by the Institute of Personnel and Development and mentioned some of the costs involved in this matter.
The noble Baronesses, Lady Gould and Lady Gibson, set out in some detail the various pieces of legislation to which someone at present can have recourse if they wish to attempt to bring a claim for bullying. I refer, for example, to the Race Relations Act, the Disability Discrimination Act and so on. I shall not go through them all again. However, I want to pick up the question of why we need to have specific legislation on this subject. It has become clear to me in my researches that because of the absence of any specific bullying legislation a great many people dream up or invent reasons to recast what is actually bullying as something else. That is extremely bad for management. To call something by another name and to call it racial discrimination or sexual discrimination, for example, when it is just plain bullying does not help either the business or the culture involved.
A couple of years ago I was on a training course led by a personnel manager. He took us through a number of different case studies in order to put across some
points. He described one case study in a large statutory organisation. He came to the crux of the matter and asked, "What happened next? Let me rephrase the question and ask any of you who ever worked for the NHS what happened next"? Three people put their hands up and said, "She went sick". The lack of specific legislation on bullying and its recasting as something else breed a culture in some organisations which is distinctly unhelpful. There is a powerful case for disentangling bullying from other things.As your Lordships will know, the 1996 Bill foundered for two main reasons. First, it suffered the fate of many a Private Member's Bill; that is, death at the hands of the draftsman. The then government spokesman, the noble Lord, Lord Lucas, took apart the wording of the Bill with all the relish of a Minister unveiling the fruits of the toil of parliamentary counsel. One of the merits of the Bill before us today is that many of those criticisms, principally those of definition, have been taken into account by the noble Baroness, Lady Gibson. Clause 1 of the present Bill which seeks to define behaviours which would be deemed to constitute bullying is much more tightly defined. However, there are one or two difficulties to which I wish to return.
The second reason why Lord Monkswell's Bill met a swift end in another place was not the ill disposition of the then government, although, undoubtedly, that played a part, but rather the sense that specific legislation would be either an unnecessary burden on business or would fail to tackle the issue effectively. I suspect that there was also another factor although it was never explicitly stated; namely, a fear that the passage of such legislation would in itself lead to a rash of claims. The then government acknowledged that although bullying was a problem of some significance, its adverse effect on productivity, coupled with existing legal protection against explicit discrimination and protection on grounds of health and safety, for example, should suffice. Six years on we have another opportunity to assess the extent to which that strategy was correct and the extent to which there is a need for legislation now.
A number of noble Lords have cited some of the studies and pieces of research which have emerged since 1996. I wish to mention just two. In 1998 Staffordshire University published research in which 40 per cent of those surveyed had witnessed bullying and 18 per cent had experienced for themselves what they termed bullying. That in turn sparked other pieces of research, the most interesting of which found that priests and clergy have been among those who have experienced that.
The research by Professor Cary Cooper and Helge Hoel of the Manchester School of Management at UMIST was quoted extensively by the noble Baroness, Lady Gould. I want to discuss two further points about it. The first involves the headline conclusions of that research, which was entitled Destructive Conflict and Bullying at Work. It concluded that bullying thrives in a management culture where the loss of emotional control goes unmanaged; that good employers need a policy to deter bullying, which states
explicitly that those who report incidents will not be victimised; and that bullying is often a correlation of autocratic, insensitive management styles, which need to be confronted and challenged. Each of those points should be readily understood by any employer who wishes to have a productive and thriving enterprise.Secondly, the detailed findings of that study tell us a great deal more. The percentages of men and women who had been bullied were roughly equal. Those who were victims were most likely to be aged between 35 and 44, to be white and on full-time permanent contracts. Although managers were most likely to be perpetrators, they, too, could be victims. The significance of that data is that they indicate that bullying is not confined to particular professions or sections of the workplace. It can and does happen to anyone, but it is most likely to occur when other poor management practices are taking place.
That study defined the critical times at which bullying was most likely to occur. It cited factors such as periods of organisational change, the introduction of new IT systems, redundancy and restructuring. All of those are well-known pressure points in any organisation of any size. That valuable information is available now and the Government should be promoting it vigorously in order to enable employers to identify bullying and to take preventive or remedial action.
As I said earlier, the Bill has benefited from previous scrutiny. Clause 1 confers a right to dignity at work and provides a detailed but not exhaustive list of behaviours. That list is helpful and necessary. On 8th April 2001, Richard Wilson of the Institute of Directors wrote an article querying the need for legislation. He said:
- "How would you distinguish between times when people do need to be criticised and encouraged to do better, and those when people are being treated in an unacceptable fashion?".
There is one point of ambiguity in Clause 1. Subsection (2) does not make it clear whether an employee can make claims against a company if the bullying is caused by customers or clients. I ask the noble Baroness to address that point and say whether such a situation would already be covered by an employer's general duty of care. That is important for organisations such the Benefits Agency, where the main incidents of harassment and bullying come from clients.
Clause 5 offers a clear course of action that employers can take to avoid further action. Many noble Lords have cited the fact that at the moment the
only redress for many employees is to resign and claim unfair dismissal. That is an expensive and wasteful process for them to have to follow. The Bill addresses a problem that is not new; it is increasingly common. It does so in a way that is practical, pragmatic and designed to promote good practice.I imagine that the Government may say that they do not want to place a greater statutory burden on employers. If that is the case, it is right for your Lordships to ask what the Government will do actively to promote employers to adopt a voluntary code of practice on this subject. What will they do to enable employers to recognise the problem and to deal with it? As one of the major employers in the country, what will they do to put their own house in order and to set the standard.
It is high time that staff who are victims of bullying are given information and support to enable them to seek a way out other than resignation from situations that, as the noble Baroness, Lady Gibson, has set out, are often extremely damaging. This measure is commendable and we on these Benches wish the noble Baroness, Lady Gibson, well, not just with this good piece of legislation, but with what, in reality, will be a longer campaign to educate employers to eradicate the scourge of bullying at work.
9.51 p.m.
Lord Rotherwick: My Lords, I congratulate the noble Baroness, Lady Gibson, on bringing forward this Bill of good clarity. There is no specific legal definition of bullying. Harassment is interpreted in UK law only in relation to the Sex Discrimination Act 1975, as it implements the EC code. Employers have a duty to care for all their workers and a liability at common law under the following laws: the Sex Discrimination Act 1975 and the Race Relations Act 1976, already mentioned by the noble Baroness, Lady Gibson, and the Disability Discrimination Act 1995.
Harassment may be considered to be discrimination under the following Acts: Health and Safety at Work etc. Act 1974, and, as again mentioned by the noble Baroness, Lady Gibson, the Employment Rights Act 1996; but the Criminal Justice and Public Order Act 1994, which created a criminal offence of intentional harassment, and the Protection from Harassment Act 1997, which created a criminal offence of harassment and a right of damages for the victim, were not mentioned.
What is the problem? When there appears to be sufficient legislation to protect workers, it is surprising that it has been acknowledged that almost universally workplace bullying is a problem. That was recognised by all noble Lords who have spoken. Research undertaken by UMIST suggests that almost half of all UK employers have witnessed bullying at work. I believe that the noble Baroness, Lady Gibson, also stated some figures from UMIST. The Industrial Society suggests that 270,000 employees in the UK take days off due to distress, which is probably caused by bullying or similar actions. Bullying may play a significant part in creating stress. Around six per cent
of companies in the UK have specific anti-bullying policies, notably Littlewoods, BT and Liverpool City Council.Will more legislation tackle workplace bullying where past legislation has failed? Research undertaken by UMIST suggests that bullying is more prevalent in the public than in the private sector, as has been said by noble Lords. Bullying is at its highest level in teaching, in the Prison Service, and in the post and telecommunications sector. Autocratic and divisive management styles, high workloads and rapid changes cultivate bullying stress styles, as the noble Baroness, Lady Barker, said earlier.
Can the extra burdens on small businesses and the public and voluntary sectors be justified with more legislation? Large private sector employers with adequate resources can and do use cost/benefit analysis to underpin a business case to tackle workplace bullying. But it is questionable whether small businesses have adequate resources to carry out similar risk assessment. This is a complex and costly area for any employer considering the introduction of dignity at work policies. The employer should take into account not only that people who are being bullied have employment rights, but that those being disciplined for bullying also have rights. For instance, if an employer does not strike the correct delicate balance in addressing an employee over alleged bullying, that employee may feel that the employer has been heavy-handed and has tried to dismiss him or her and can make a tribunal claim against the employer.
Can legislation be used surgically to solve a workplace problem without secondary effects? While there is an argument as to whether or not we want this type of legislation, it is worth bearing in mind what Jan Long, the clinical adviser at the Wiltshire and Swindon NHS Trust's staff support centre, said. He warns that accusations of bullying are already used to cover up poor performance. He goes on to state:
- "Once accused managers find themselves in an agonising situation where it is almost impossible to defend themselves. The knock on effect is that managers are finding it increasingly difficult to discipline staff. Sadly, this is especially true when dealing with sensitive situations—such as with members of minority groups".
- "How would you distinguish between times when people need to be criticised and encouraged to do better, and those when people are being treated in an unacceptable fashion?".
However, on the other hand, the TUC Secretary, John Monks, is calling for legislation to address workplace bullying directly. Mr Monks believes that this is the only way to ensure that every victim is protected.
In conclusion, the Bill encourages businesses and organisations to develop their own dignity at work policies. Workplace bullying appears to be a widespread phenomenon. It is most clearly unacceptable. It is traumatic for employees and for employers, and damaging for the business in general. The aims of the Bill are admirable. We support the
measures that aim to tackle bullying in the workplace and that raise public awareness of its existence. After all, if a company has a well-publicised anti-bullying policy, it can learn to recognise and then minimise the problem. However, it is unclear whether solutions lie in more legislation which possibly makes the situation more complex and confusing.We should all aspire to the universal adoption of good practices. Indeed, most people work best under such conditions. There is also a question of whether legislation could be used well by the public sector where the prevalence of "destructive conflict and bullying at work" is worse, as we have already said, in the post and telecommunications sectors, teaching and the Prison Service. However, it is unclear whether such legislation would be appropriate to the private sector which has limited manpower and financial resources.
We should also remember that small businesses comprise 99 per cent of all businesses in this country; they employ 44 per cent of the private sector workforce; and generate 37 per cent of the output. They also create virtually all new jobs in the economy. There has been a torrent of legislation in this area. Indeed, there have been over 3,800 new directives in this year alone. It is interesting to note that Britain has fallen from ninth to 19th in the world competitive league. With facts like these one has to question whether this sort of well meaning legislation will not end up being detrimental to businesses and their employers as a whole.
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