(the "FDA Case"). A number of points may usefully be taken from the judgment in the FDA Case.
52. First, in providing that harassment, bullying and discrimination was not consistent with the Ministerial Code and was not to be tolerated, the 2018 Ministerial Code was, viewed objectively, intending to set a standard of behaviour for Ministers in respect of their treatment of civil servants (amongst others)[1].
53. Secondly, the Court accepted8 that there was a broad consensus that conduct would fall within the description of 'bullying' if it can be characterised as:
(1) Offensive, intimidating, malicious or insulting behaviour; or
(2) Abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient[2].
54. Thirdly, it was expressly stated[3] that conduct may fall within the first limb of the definition, and so constitute bullying within the meaning of paragraph 1.2 of the Ministerial Code, whether or not the perpetrator is aware or intends that the conduct is offensive, intimidating, malicious or insulting.
55. Fourthly, in addressing the example of a decision to remove some of the responsibilities of a particular civil servant, the Court stated[4] that this may be a legitimate management choice or it may be done with the aim (or intention) of denigrating or humiliating the person concerned. Only in the latter type of case would this type of conduct be regarded as bullying.
56. Fifthly[5], the Ministerial Code is different from typical workplace policies governing the behaviour of employees, which will usually include both a grievance policy and a disciplinary policy. Such policies often provide a definition of unacceptable behaviour and are structured to take account of a wide range of factors, including: the nature and seriousness of the conduct; the reasons, understanding and intentions of the alleged
- ↑ See [49].
- ↑ None of the constituent elements of this accepted characterisation of bullying is a legally defined term. All of the words used are capable of a range of interpretations. Where relevant, I have explained below the sense in which I have used any of these words.
- ↑ [50], final sentence.
- ↑ At [51].
- ↑ See [54].
11
