47. The civil servants in question are (or were) employed either as policy officials (concerned with the development, formulation and implementation of government policy) or in the DPM's private office (responsible for the effective administration of his work as a Minister and acting as the interface between the DPM and policy officials).
48. An employer owes a legal duty of care to its employees to ensure their safety and dignity at work. The employer of civil servants is the relevant government department (here, DExEU, FCDO and MoJ) and not the Minister[1]. However, as the foreword to the 2018 Ministerial Code made clear, "Parliament and Whitehall … are places of work too, and exactly the same standards and norms should govern them as any other workplace". The DPM accepted that it was immaterial, for the purpose of the investigation, that he was not in law the employer of the civil servants in question.
49. In view of the content of the Complaints, the focus of the investigation was on the question of bullying ("… Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated"). 'Bullying' is not a legally defined term and is not a defined term for the purpose of the Ministerial Code. I explain below the approach I took to its meaning for the purpose of the investigation.
50. Harassment and discrimination are statutory concepts, defined in the Equality Act 2010. This type of unlawful behaviour is premised on the affected individual having one or more of the 'protected characteristics' (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation)[2]. The evidence obtained in the investigation did not indicate that there was any such unlawful element to the DPM's conduct.
51. The meaning of 'bullying' for the purpose of the Ministerial Code was considered by the High Court of Justice in 2021, in the context of an application by the FDA trade union for judicial review of the approach of the then Prime Minister, Mr Johnson, to a complaint about the conduct of the then Home Secretary in relation to civil servants[3]
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