Bullying and harassment at work

Bullying and harassment at work. These terms are often used interchangeably and have been much used in the recent media coverage of the allegations that Gordon Brown has been mistreating staff within 10 Downing Street.

In general terms, harassment is usually referred to as unwanted conduct affecting the dignity of men and women in the work place. The most important thing to note is that the actions or comments simply need to be viewed by the victim as unacceptable, degrading or insulting.

Bullying may be characterised as intimidating, malicious, humiliating, or insulting behaviour.  It can often arise where the perpetrator attempts to humiliate or undermine the recipient of the bullying in some way.

The Legal Position

Employees often complain they have suffered poor treatment from colleagues or superiors and go on to indicate this is because the individual just doesn’t like him/her or, that they have never got on, perhaps due to a clash of personalities.  In those circumstances the individual will have no legal claim.

However, if the employee is able to point to the fact that the bullying was because of his or her sex, race, age, disability, sexual orientation or religious/belief, there may well be ground for pursuing an Employment Tribunal action.

UK Legislation

At present there are provisions specifically dealing with harassment in legislation dealing with race, sex, disability, age, sexual orientation and religion/belief.

Legal definition of Harassment

At present, the legal definition of harassment as applied to race, sex, disability, age, sexual orientation and religion/belief is:

“Unwanted conduct that violates a person’s dignity or creates an intimidating hostile, degrading, humiliating or offensive environment”.

Discrimination legislation provides a means for the Employee to bring formal Tribunal complaints arising out of harassment or bullying on the grounds I have mentioned above.

Breach of Contract

In every employment contract there is a mutual (unwritten) obligation on both employer and employee to maintain trust and confidence.  Bullying or harassment by an employer, or a failure by an employer to respond appropriately to complaints of bullying or harassment may give rise to a breach of the implied contractual duty to maintain trust and confidence.

If that is the case, the employee may resign and can then pursue a claim for Constructive Dismissal in the Employment Tribunal.

The employee must act reasonably prompt in resigning as a failure to do so will be seen by the Tribunal as acceptance of the breach.

Liability of Employer

Most alarmingly from an employer’s perspective, the employer will be held liable where an employee bullies or harasses a fellow employee on one of the grounds mentioned above.  This liability attaches to the employer even where he knows nothing of it.  Furthermore, although it depends on whether the harassment took place during the course of the harasser’s employment, the employer may even be held liable for harassment which takes place off the employer’s premises.

To defend a claim for harassment it is of key importance for the employer to be able to argue that, even if the harassment took place during the course of the harasser’s employment, the employer took all reasonable steps to prevent the harasser doing it.  In particular, this means the employer must have introduced a fully up to date Equal Opportunities policy and ensured all staff have received training and guidance on its contents.

Whether liability should be imposed is essentially a question of fact for the Employment Tribunal hearing the case.

Protection from Harassment Act 1997

This legislation creates criminal liability for offences of harassment but also makes it a civil wrong to pursue a course of conduct which amounts to harassment.  Such behaviour can be restrained by court order and if loss or injury results, can give rise to a duty to compensate by way of damages.

However, in 2005 the case of Majrowki v Guy’s and St Thomas’ NHS Trust opened up a new avenue by which employees can seek redress in the civil courts against their employers.  Mr M was allegedly bullied by his departmental manager who was highly critical of him and abusive in front of others.  The Court of appeal subsequently decided it is possible to hold an employer liable if an employee harasses a third party, including fellow employees.  The critical test is whether or not the conduct is “reasonably incidental to” the employee’s duties.

What should employers do to reduce the prospect of claims by employees?

Ensure your existing conduct rules, grievance policy and equal opportunities policy are in date, that they have been issued to your employees and have had the opportunity to absorb their contents.

Introduce compulsory regular training programmes in these areas and retain clear records of who attended.  In the event your business later faces a claim arising out of bullying or harassment, your training records will ensure you can show that employees have received adequate training in these areas and that you have taken all reasonable steps to teach your employees about what is acceptable behaviour.  This will provide some scope to argue the business should not be held liable for the acts of the perpetrator who alone should be held responsible for his acts.

Provide suitable training for your managers and stress they must be alive to the substantial risks posed to your business.  Act promptly if complaints are received and rigorously investigate allegations.  It is recommended that you take legal advice at an early stage to minimise the risk of successful claims.