Had it been regarded as relevant, the High Court is likely to have included this proposition in its analysis. It would also not be consistent with the High Court's view that conduct can amount to bullying even though the perpetrator is not aware of and does not intend its adverse effect. In substance, the point may be relevant to the seriousness of the conduct, rather than to its nature. The High Court in the FDA Case did, however, recognise in relation to the second type of bullying conduct (abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient) that intentionality is "in truth a reflection of that type of conduct"[1].
65. In order to ensure the fairness of the process, and given that my role is not to determine as a matter of law what 'bullying' means for the purpose of the Ministerial Code, I have considered the position and made findings of fact with the DPM's representation in mind. I have therefore also addressed the questions whether he "knew or ought to have known" that any relevant conduct was offensive, intimidating, malicious or insulting, or an abuse of misuse of power which was likely to undermine, humiliate, denigrate or injure the recipient.
66. In addition, the DPM made representations that bullying: (1) entails "some element of targeting" of an individual or a group, whether or not intentionally; (2) does not "encompass generalised styles of working applied equally across a department which have an adverse effect on a minority of staff"; and (3) does not include behaviour which is "direct, demanding, challenging, rigorous or questioning … particularly where the recipient is a senior person in a high-stakes professional environment". For the same reasons as before, I have in making findings of fact given consideration to each of these matters.
(6) The production of this report
67. I have had invaluable assistance throughout the investigation from a number of officials working in the Cabinet Office. They would not welcome being publicly named. This report is, however, my own work and any errors or omissions are mine alone. I have not at any stage been put under any pressure as to what to investigate or not to investigate or as to what findings of fact should or should not be made.
- ↑ At [51].
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