may often be unaware of the impact. Both such types of behaviour may comprise bullying in the sense used in the FDA Case. I obtained further assistance, in terms of the range of possible behaviours which may be relevant in the context of an allegation of bullying, from the independent inquiry report of Dame Laura Cox DBE, "The Bullying and Harassment of House of Commons Staff" (15 October 2018)[1].
61. My attention has also been drawn to the approach to bullying adopted by Sir Alex Allan in his findings as Independent Adviser into the Conduct of Priti Patel[2]. He stated:
… The definition of bullying adopted by the Civil Service accepts that legitimate, reasonable and constructive criticism of a worker's performance will not amount to bullying. It defines bullying as intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down.
62. I did not detect any difference of substance between Sir Alex Allan's approach to the meaning of bullying and that adopted in the FDA Case, which was itself considering Sir Alex Allan's findings. I have approached my findings of fact on the premise that it is necessary and appropriate to distinguish between "legitimate, reasonable and constructive criticism" of an employee's performance and behaviour capable of being regarded as bullying.
63. In his written representations to the investigation (addressed more generally below), the DPM contended that there must be an objective element to the alleged conduct before one could regard it as bullying. In particular, he suggested that the following question (derived from the test of harassment under section 2 of the Protection from Harassment Act 1997) should form part of the test for determining whether bullying has taken place:
Did the person know, or ought they to have known, that the conduct in question was i) offensive, intimidating, malicious or insulting; or ii) an abuse or misuse of power which was likely to undermine, humiliate, denigrate or injure the recipient?
64. This proposed test may not represent an accurate statement of the legal position, at least in relation to the first limb of the test which the High Court adopted in the FDA Case.
- ↑ See paragraphs 105–109 in particular.
- ↑ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/937010/Findings_of_the_Independent_Adviser.pdf.
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