Fighting back

The
recent £230,000 damages payout for bullying shows victims are hitting the UK’s
bully culture where it hurts most – in the pocket. Helen Boddy looks at the
latest developments

Swansea teacher Alan Powis hit the headlines last month after he received
one of the highest compensation payouts ever for bullying at work – at
£230,000. The out-of-court settlement by Neath Port Talbot Council was awarded
for damage to his health caused by a nervous breakdown following years of
alleged mistreatment at the hands of his former head teacher, and his eventual
sacking.

The case comes as a reminder that bullying constitutes a serious problem for
employers. Not only can it lead to significant costs in terms of absenteeism,
staff turnover and reduced productivity, but it is also one of the key triggers
for work-related stress and personal injury claims of the type brought by
Powis.

A large-scale survey published last month illustrates just how big a problem
bullying is in the UK workforce. It found that more than one in five employees
reported having been bullied at least once in the past year. The findings, by
Mercer Human Resource Consulting, also indicate that well over 1.5 million
workers could be the victims of repeated bullying at work.

The survey, which covered 3,500 British workers of different grades, found
bullying was not only the experience of employees lower down the hierarchy.
Twenty-four per cent of middle managers and 17 per cent of senior managers said
they had been bullied, suggesting just how entrenched the problem might be.

Furthermore, it showed men are as likely to be bullied as women; age did not
seem to be a factor, nor did the size of the employing organisation.

However, there were, unsurprisingly, marked differences between industry
sectors. The public healthcare sector was the worst offender – 28 per cent said
they had been bullied at least once – and retail reported least occurrences at
18 per cent.

As matters stand, employees have little statutory protection against
bullying in itself, unless it is linked to their gender, race or disability.
For any bullying claim to be successful, an employee has to establish that it
was so severe it caused personal injury, and that the employer should have
foreseen the risk to health. This needs to be supported by medical evidence.
The only alternative is for an employee to resign and claim constructive
dismissal based on a breach of the implied contractual term of trust and
confidence, or a breach of the employer’s duties under the health and safety
legislation.

While there is no specific EU directive obliging EU member states to outlaw
bullying at work, the European Parliament has urged member states to take
measures to counteract the effects of bullying by, if appropriate, introducing
legislation.

In this context, the private member Dignity at Work Bill was instigated by
Baroness Gibson in the House of Lords last year. After three readings in the
House of Lords it has now been transferred to the House of Commons, but was not
listed for debate in this Parliamentary session. However, the House of Commons
will not be able to drop the Bill without giving reasons to the House of Lords.

The unions have also been highlighting this issue. The TUC’s ‘tackle the
hassle’ campaign made much of the link between bullying and stress at work, and
public sector union Amicus last month launched a Ban Bullying at Work campaign
aimed to garner mass support for the Dignity at Work Bill.

While this means things could get even tougher for employers, at least
legislation would introduce a degree of certainty into what is currently a grey
area. The Bill sets out detailed guidelines that could assist employers and
employees in determining where they stand when bullying occurs.

One problem at present is that there is no clear definition of what
constitutes bullying – it can range from unfair or overly harsh criticism
through rude, threatening or intimidating behaviour to physical abuse. For the
purposes of the Dignity at Work Bill, the acid test of whether an employee has
suffered bullying is subjective – the conduct must cause the employee to be
alarmed or distressed. The Bill gives a non-exhaustive list of examples of
conduct which could qualify:

– Behaviour on more than one occasion that is offensive, abusive, malicious,
insulting or intimidating

– Frequent unjustified criticism

– Punishment imposed without reasonable justification

– Changes in the duties or responsibilities of the employee to his detriment
without reasonable justification

If the Bill is passed, an employee will not need to resign in order to bring
a claim or establish a medical condition caused by bullying. They will simply
need to show they suffered the behaviour on more than one occasion. Whether it
would be sufficient for an employee to show that they suffered the behaviour
twice, or whether he would need to itemise numerous occasions, would probably
depend largely on the gravity of the behaviour.

As this test of what constitutes bullying is subjective, the employer would
not be able to defend itself on the basis that a reasonable employee would not
have been alarmed or distressed – it would have to "take the employee as
it finds him".

Any claim would be brought before the employment tribunal. It would have the
power to make a declaration of the employee’s rights and to order the employer
to take specified action. It would also have the power to order the employer to
pay damages, and to make an award in respect of injury to feelings. In deciding
on compensation to award, the tribunal must have regard to the seriousness,
frequency and persistence of the employer’s breach.

As in cases of sexual harassment under the Sex Discrimination Act 1975 (see
p14), it would be a defence for an employer to show he had taken all reasonable
steps to implement a policy aimed at preventing the behaviour complained of.

The Schedule to the Bill gives useful guidance as to what such a policy
should contain, together with recommendations as to how it should be monitored
(see above, right). The policy must be in writing, must include a clear
procedure for dealing with complaints under it together with a clear statement
of the disciplinary action that would be taken on infringement of the policy.

Cases such as that of Powis show how bullying behaviour can become a
cultural norm in some workplaces – with costly consequences. The Mercer
findings suggest it may take some time to educate those in positions of
responsibility that abusive or intimidating behaviour must become a thing of
the past. Whether or not the Dignity at Work Bill becomes law, the prudent
employer will not delay in introducing a suitable policy.

Helen Boddy is a partner and head of the employment group at Shadbolt
& Co

Find out more…

on the Dignity at Work Bill at

www.publication.parliament.uk/pa/ld200102/ldbills/031/2002031.htm

Case study: passing on the pressure

Alan Powis, 53, was sacked in 1997
for gross misconduct after five years of alleged bullying by his then head teacher.

He claimed the head teacher would sit at the back of his class
taking notes on his lessons. She would then call him into her office to
criticise his teaching.

"I would find there would be somebody in the head teacher’s
room taking notes. I would be accused of poor standards and incompetence. I
could not believe someone was thinking like this," said Powis.

National Union of Teachers Cymru regional secretary Gethin
Lewis said: "Powis had support from his union, family and local paper, but
nothing from the governing body…and nothing from the education authority.

"The award reflects that his health has been damaged. All
that Powis and other teachers would want is to stay in teaching and be properly
treated, not have vindictive people putting them through disciplinary
procedures which are unsupported by the facts of the case.

"The lesson for local authorities is that teachers can
bully each other. It is all about the pressure on the system to reach targets.
Unfortunately, some people overreact and pass the pressure down to others."

Devising a dignity at work policy

– Put the policy in writing and
distribute it to every employee

– Include an explanation of employees’ right to dignity at work
and a statement that breaches of the right will not be tolerated

– Give examples of unacceptable behaviour and explain it may
lead to disciplinary action

– State the disciplinary procedure for infringements of the
policy

– State the procedure for bringing complaints and make a
commitment to serious, objective and confidential investigation with
representation for complainants

– Designate a manager to whom complaints should be made

– Designate a number of people to counsel, assist and advise
both complainants and the subject of complaints and disseminate their details

– Give training in the policy to all managers and ensure all
employees are informed of its contents

– Monitor the operation of the policy annually and report to
senior management including a summary of complaints (without naming names) made
under the policy

– Consult with trade union or employee representatives on the
operation of the policy and any revisions

Source: Schedule 1 of Dignity at
Work Bill

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