Cultural issues related to allegations of bullying and harassment in NHS Highland: independent review report

10. Bullying and Harassment

Definition

10.1. It is alleged that there has been a culture of bullying and/or harassment in NHSH.

10.2. According to the Oxford Advanced Learner's Dictionary bullying is "to frighten or hurt a weaker person"^[19] or group, and a bully "uses her or his strength or power to frighten or hurt weaker people."^[20]

10.3. Other definitions refer to a persistent pattern of mistreatment from others that causes either physical or emotional harm and includes tactics such as verbal, nonverbal, psychological, physical abuse and humiliation. This can also, according to some definitions, include harassment which itself can include intimidation.

10.4. The Health & Safety Executive refers to a pattern of behaviour happening "repeatedly and persistently over time."^[21]

10.5. While I note that there is a statutory definition of harassment in the Equality Act 2010, for the purposes of this report I do not find it necessary to distinguish between bullying and harassment. These words by themselves describe conclusions from primary facts, namely the actual behaviour which is likely to cause concern. The following excerpt (taken from the report by Dame Laura Cox into bullying and harassment in the House of Commons^[22]) adequately describes that behaviour and I find her descriptions useful in this review:

98. "The terms "bullying" and "harassment" can mean different things to different people … it is important to bear in mind that it is not always possible or sensible to try and compartmentalise misconduct of this kind. Some of those contributing to this inquiry described behaviour which would fall within more than one category."

101. "There is obviously considerable overlap between the terms "bullying" and "harassment", and employment policies that address them often use the terms interchangeably."

10.6. She further reported:

106. "ACAS have described bullying and harassment together as "offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Bullying or harassment may be by an individual (perhaps by someone in a position of authority such as a manager or supervisor) or involve groups of people. It may be obvious or it may be insidious. It may be persistent or an isolated incident. It can also occur in written communications, by phone or through email, not just face to face. Whatever form it takes, it is unwarranted and unwelcome to the individual."

Dame Laura Cox Descriptions

10.7. For further useful guidance and as a reference point, I find it helpful and relevant to set out more fully some of what Dame Laura Cox has written, as so much of what she reports has relevance to what has occurred in NHSH, as subsequent sections describe:

102. "Under the Protection from Harassment Act 1997 it is unlawful for someone to pursue a "course of conduct" (thus involving two or more incidents), which they know or ought to know would be harassment. The term "harassment" is not defined in the Act since it can take so many different forms, but section 7(2) provides that it "includes alarming the person or causing the person distress," and "conduct" includes "speech." The actions complained of do not need to be violent. The courts have stated that "harassment" describes conduct targeted at an individual, which is calculated to cause alarm or distress, and that to be actionable it must cross "the boundary between unattractive or even unreasonable conduct and conduct which is oppressive and unacceptable" (Conn v Sunderland City Council [2007]CACiv1492)."

105. "The term "bullying" covers a wide spectrum of behaviours and a degree of flexibility is required when classifying such behaviour. In my view one of the most helpful descriptions of bullying at work is that formulated by the late Tim Field and those at the Andrea Adams Trust, who carried out much of the pioneering work in this field, namely that it is "behaviour that cannot be objectively justified by a reasonable code of conduct, and whose likely or actual cumulative effect is to threaten, undermine, constrain, humiliate or harm another person or their property, reputation, self-esteem, self-confidence or ability to perform."

107. "The typical features of bullying and harassment are therefore that the behaviour is unwarranted, unwelcome, intimidating, degrading, humiliating or offensive. The important question is whether the actions or words are viewed as detrimental and unacceptable to the target. It is the deed itself and its impact on the target that matters, not the intention of the perpetrator. And it is usually preferable to describe someone being bullied as a 'target,' rather than a 'victim.' The latter term tends to be associated with negative notions of someone unable to take responsibility for themselves, or needing to be 'rescued' from a situation. Bullies often respond to complaints about their behaviour by describing the target as having a "victim mentality," with all the negative imagery that phrase invokes."

108. "Bullying and harassment can affect anyone, in any career, at any time, at any level and within any workplace... Such behaviour can take the form of easily noticed, physically threatening or intimidatory conduct with immediate impact, or it can take place behind closed doors, or be much more subtle or camouflaged and difficult to identify, at least at first. It can start, for example, with what appear to be minor instances, such as routine 'nit-picking' or fault-finding with someone's performance, but which become cumulative or develop into more serious behaviour over time, enabling the perpetrator to isolate and control the person and eventually, on occasion, to apply conduct or capability proceedings inappropriately in order to bring about their dismissal."

109. "Some bullies lack insight into their behaviour and are unaware of how others perceive it. Others know exactly what they are doing and will continue to bully if they feel they are unlikely to be challenged. Bullying and harassment can sometimes be overlooked, as a result of common euphemisms being used by way of explanation or justification, referring to someone as having a "poor management style" or a "bad attitude," for example, or to the problem being due to a "personality clash." The information provided to this inquiry has demonstrated all these different features."

111. "In relation to the allegations of bullying made against House staff, a number of people referred to the need to distinguish between behaviour that is truly bullying and behaviour that is no more than "assertive" or "firm" management. They referred, similarly, to the need to distinguish between harassment and legitimate supervision. I agree that it is important to recognise these distinctions, although there can sometimes be a fine line and both managers and those whom they manage need to be trained to spot the difference."

112. "A good line manager can manage or supervise someone firmly and be assertive without bullying or harassing them... Firm management does not demand an overbearing or oppressive style. Firmness and resoluteness are not inconsistent with an open and inclusive style, encouraging direct communications with employees and regular feedback on performance, which are invariably more motivating."

113. "It is also important to distinguish between bullying behaviour and reasonable management responses to actual or perceived misconduct, or to poor performance by an employee. A few contributors described instances when managers who had instigated appropriate conduct or performance management proceedings found themselves on the receiving end of a grievance accusing them of bullying. This had immediately brought a halt to the proper management of the employee's conduct or performance. The original deficiencies were then lost during the months taken up in dealing with the grievance, expending precious resources, causing distress to the manager accused and inhibiting other managers from tackling poor performance. Sometimes there had been earlier failures to manage the employee effectively and they had simply been moved on to other departments, where the manager who eventually sought to address the poor performance was then unfairly accused."^[23]

Sir Robert Francis Report

10.8. Sir Robert Francis in his report "Freedom to Speak Up", provides these examples offered by ACAS of bullying or harassment:

• spreading malicious rumours
• insulting someone by word or behaviour
• exclusion or victimisation
• unfair treatment
• overbearing supervision or other misuse of power or position
• making threats or comments about job security without foundation
• deliberately undermining a competent worker by overloading and constant criticism
• preventing individuals progressing by intentionally blocking promotion or training opportunities.^[24]

10.9. I mention these examples as again they seem relevant, and to give context, to what has been experienced in NHSH as this report will outline. In other words, these are common experiences.

Language

10.10. Language and definitions are inevitably fraught with difficulty. Sir Robert Francis recognised that bullying is often "in the eye of the beholder" and that the term can be misapplied but also that "To an extent, whether people's experiences meet an objective standard definition of bullying or not is beside the point. If someone believes they have been bullied or harassed and the perception of others around them is that they have suffered or will also suffer in a similar way as a result of speaking up, then they will be less likely to raise a concern in future." As he observed: "The perception of bullying can have the same detrimental effect as deliberate bullying conduct."^[25]

10.11. For the purposes of this review, I use the expression "bullying" to describe behaviour which has been experienced by staff that may fall within the terms "bullying" and/or "harassment". I have on occasions preferred the term "inappropriate behaviour" to describe what people have experienced.

10.12. I noted this comment about the very use of the word "bullying" by one of the senior figures in NHSH:

"If people could measure us now, they'd get a detectable change in us when you say the word. It's a violent-impact word. As a communicator, if I choose to use that word, I know it's a dart and will not land well. So I choose not to use it."

This seems a useful reminder which readers should bear in mind whenever the term "bullying" appears in this report.

10.13. Another observer commented:

"... there may be people who are generally unhappy with people who do not enjoy the work. Things have changed. They don't feel in control or their voice is being heard. But they haven't been bullied or intimidated. It's teasing out these different things and having an understanding of why people feel the way they have, in a situation that has caused them distress."

10.14. One respondent to the review observed how difficult it is to identify bullying:

"B&H is difficult to deal with generally. It's a very personal thing. Harassment is easier as it can be obvious. Bullying can be an undercurrent – can make people feel in a certain way and takes them time to even come to the conclusion that they feel or are bullied. It's not just managers and employees, but as an organisation we're not necessarily clear about respectful behaviours."

10.15. Another respondent put it in the context of NHSH:

"There are various definitions of what is meant by the phrase "bullying and harassment", but none are well-known to the wider workforce. Most people will be unaware of the standards of behaviour to which their employer will hold them."

10.16. This seems to be an important point. NHSH has its own policies on bullying and harassment; there are descriptions of what is included and what action can and should be taken. If these are not known and/or have not been followed, it seems essential to explore why not.

Why Bullying is Bad

10.17. Sir Robert Francis stated the obvious perhaps but, under the heading "Why Bullying is Bad", he commented:

5.5.9 "The impact of bullying on individuals, on teams and on organisations as a whole are well known. Examples include:

• avoidable stress and resulting illness
• increase in sickness absence leading to stretched teams and/or increased spend on temporary staff
• poor morale and difficult staff relations
• loss of respect for managers and leaders
• difficulties in staff retention
• reputational damage
• patients suffering harm or receiving less than optimal care."

10.18. For him, the "most important consequence is the fact that workers who are bullied, or who see others bullied, are much less likely to raise the safety concerns which any well-led organisation needs to know about and act on."^[26]

Again, this has resonance in the experiences in NHSH.