Bullying at work costs a fortune. Millions of working days are lost and staff turnover increases, as does the cost of re-recruiting and training. Surveys from the Chartered Institute of Personnel and Development (CIPD), Bupa and others have made that position clear.
For the bullied worker, the law is inept. Unfair dismissal offers little, apart from resigning and losing your job, while the bully remains. Compensation is not necessarily what the worker wants. And it is also an unattractive remedy for the employer, which loses a worker, but gets left with the troublemaker.
Sex or race discrimination law may seem more attractive because a claim can be made without the worker resigning. But a bully who mistreats a woman or someone from an ethnic minority at work may also bully white males. Unless the bullying and the protected characteristic are linked, discrimination law is useless in these cases.
One answer is to effectively manage bad behaviour by applying disciplinary conduct rules. But if this was an easy answer, the amount of inappropriate behaviour re-ported would be much less.
A joint project, funded by Amicus and the Department of Trade and Industry, attempts to tackle the issue on a voluntary basis; those interested can read about it at www.dignityatwork.org.
Those who doubt the effectiveness of voluntary measures might consider using criminal law to fill the vacuum. This provides remedies that could be used by both employer and employee to deal with those who harass and bully at work.
The Protection from Harassment Act 1997 provides both civil and criminal remedies. Originally designed to tackle stalking, its remit is much wider.
All that is required is that the defendant knew or ought to have known that their actions would amount to harassment. This is assessed on an objective basis and harassment is left to the court to identify on a ‘common sense’ basis. Under the Act, harassment is deemed to have occurred after two incidents.
If the bullied worker uses this course, there are points the employer should note. First, taking action costs the employee nothing. All they have to do is report the behaviour to the police, who would then contact the Crown Prosecution Service. Second, an employer can be vicariously liable for the conduct of an employee amounting to harassment under the Act. What is needed is a ‘sufficiently close’ link between the behaviour and the employment, making it reasonable to hold the employer liable.
It is probable that most forms of bullying occurring at work will have such a sufficiently close connection, and it may be useful to note the words of one judge, who said employers are “expected to be alert to all sorts of discrimination and exploitation by their employees”.
The Act also provides for an injunction and restraining orders to prevent harassment. Injunctions can be obtained by an employer to protect staff, as Oxford University did to protect (among others) its staff from harassment by animal rights protestors.
Another example occurred in First Global Locums Limited v Cosias , after an employee was alleged to have indulged in violent and threatening behaviour towards their colleagues, including inviting one of them to ‘step outside’, and threatening and manhandling another.
This can be a very speedy remedy. An injunction was obtained from the High Court the day after the threats were made, and it continued until a further hearing a month later.
The Act can also allow the bullied worker to claim damages for anxiety falling short of injury to health. This would have a much lower threshold than normal stress cases and, in contrast to tribunal claims, claimants would be eligible to apply for legal aid and to recover costs if successful.
Learning points for HR
- Bullies are best dealt with through the disciplinary process.
- Let staff know that bullying may be tackled through criminal law.
- The Protection from Harassment Act 1997 allows both civil and criminal remedies.
- Injunctions are available to protect staff.
- The remedies are free to employees.
- Staff who breach injunctions go to jail.