Stop picking on me

Bullying at work is not just bad practice, it  is now officially illegal following a recent Scottish judgment.
Advice is given on how to help both perpetrator and victim.  By Gillian Howard

Up to one in 10 people suffers from workplace stress and bullying, leading
in some cases to unemployment or hospitalisation, according to a report
published late last year by the International Labour Organisation. In the
report, which covers surveys from five countries, the ILO says that this costs
industry and taxpayers billions of dollars each year. Stress, burnout and
depression now affect one in 10 workers, with depression second only to heart
disease in disabling conditions. And new research from the Trades Union
Congress suggests that stress and long hours are caused by poor management. The
report, Work smarter – an end to burnout Britain reveals that six million
workers believe their bosses do not know how to manage staff. TUC general secretary
John Monks called for efforts to curb stress and the long-hours culture.

In another survey the UK Mental health charity Mind report that 27 per cent
of people questioned said they would rather lie to their boss than say they had
to take time off work because of mental stress.

What do the courts say?

In the first case on bullying to be heard by the House of Lords – Waters v.
Metropolitan Police Commissioner, 2000, IRLR 720 – the Law Lords held that an
employer could be held negligent if that employer failed to protect an employee
against victimisation and harassment which caused either physical or mental
injury.

This was, held the Lords, particularly the case where an employer knew or
ought to have known that an employee or several employees were carrying out
acts during their employment which could cause physical or mental harm to
another employee and that employer "did nothing to supervise or prevent
such acts when it was in their power to do so".

It could also be negligent on the part of an employer if it was foreseeable
that the employee in question would be bullied or victimised or retaliatory
measures taken against them and the employer took no protective steps to
prevent or reduce that conduct.

What steps should an employer take?

This case makes it clear that an employer can only avoid being held
negligent if there is a clear recognition within the employment that bullying
can take place, what it is and how the victim can seek help and assistance from
senior management.

Management must have policies in place to act swiftly once bullying has been
drawn to their attention. In the first instance an independent and sensitive
investigation should be carried out including interviewing all relevant staff,
both current and former employees, in order to obtain a balanced picture of the
alleged bully and of his or her past activities.

Contemporaneous witnesses will be particularly important to interview. They
will be work colleagues, friends or close family to whom the victim has
reported the bullying. It is unlikely that there will be any eye witnesses.

The policy on bullying should emphasise that, if possible, the victim should
keep records of what has been said and done to them so that a clear account can
be put to the alleged bully.

In investigating accusations of bullying, records such as appraisals will be
important to ascertain whether any unfairness or punishment has been meted out
by way of

– An unfair appraisal

– A poor salary increase or bonus award

– Increasing the workload unfairly or excessively

– Deliberately isolating or eliminating the victim from legitimate business
meetings, etc

Employers must ensure that victims are removed from the stressful
environment or, better still, the bullies are removed from the workplace and
offered psychological counselling and interpersonal skills training and
possibly cognitive behaviour therapy in order to help them modify their
behaviour.

If (or when) these claims succeed, the damages are normally high as victims
may never work again and their physical and mental health can often be
destroyed.

Scottish case confirms bullying is unlawful

If further proof was needed that the courts are now taking bullying
seriously, then the recent Scottish Court of Session (the Scottish equivalent
of the English Court of Appeal) confirms this.

In Cross v. Highlands and Islands Enterprise, 2001, IRLR 336, the Court of
Session has ruled that where an employer knew or should have known that the
working conditions in which they required an employee to operate were so
stressful that it was objectively likely that, over time, the employee would
succumb to psychiatric illness and who nevertheless continued to subject the
employee to those conditions despite growing signs that he or she was
developing such psychiatric illness, that employer would be liable for any loss
and damage suffered by that employee.

While the court recognised the difficulty of proving that the illness was
foreseeable and that the work situation was the primary cause of the
psychiatric illness, the court held that the standard of care expected of an
employer was that to take such care as a "reasonably careful employer
would take in the circumstances".

In the case of James Cross, he sadly committed suicide after complaining to
his immediate boss, colleagues and family that he could not cope with his job.
He had complained to his GP that his workload was too heavy, that he lacked
proper assistance and had inadequate secretarial support.

After nearly three months off sick, he was certified as significantly
improved by his doctor and signed fit for work. In this particular case his
employers took all reasonable measures including ensuring that his supervisor
spent the whole of his first day back at work organising his workload by
reducing the amount and eliminating the difficult more cognitive work, giving
him more procedural tasks to work on.

Despite all this support and assistance some two months later he shot
himself.

The employer was not held liable for his suicide in light of all the steps
and measures they had taken in this particular case.

The normal rule of the "egg shell skull" principle also applied.
Thus if an individual was more susceptible to bullying or stressful conditions
than others and the employer knew of those susceptibilities, then the employer
owed a higher duty of care to that individual.

So if employees return to work following a spell of sickness absence for
"stress" or anxiety or depression, it is essential that reasonable
adjustments are made to their work and workplace in order for them to ease
their way back into work.

What is a bully?

There have been many descriptions of bullies but typically they will

– Make life difficult for their staff

– Shout in front of others to get things done

– Refuse to delegate when appropriate

– Block promotion or refuse to give fair appraisals, pay or bonus awards

– Exclude the victim from legitimate business activities

– Criticise unjustly, and

– Constantly attack that member of staff in terms of their professional or
personal qualities

The effects of bullying

The health effects are self-evident. Most people who are bullied suffer from
insomnia, anxiety, headaches, high blood pressure, skin rashes, bursting into
tears, palpitations, sweating and loss of self-confidence. Often the victims of
bullying will choose to leave their jobs rather than allow the bullying to
continue, fearful that complaining will merely make it worse.

The role of occupational health

The role of occupational health is often crucial as this may be the victim’s
first port of call.

Careful medical notes must be kept and very careful consideration of whether
to report the facts of the allegations to management will have to be made.

In the first instance of course the patient’s informed consent should be
obtained. However if this is not forthcoming then resort may have to be made in
the form of discussions with human resources or senior management about the
time-honoured hypothetical case of bullying.

However, in very serious cases where there is a real risk of suicide or
imminent or other serious danger to the individual or to others, then if
informed consent cannot be obtained, the occupational health physician may have
to determine whether a limited report should be made in any event. This would
normally be done only after discussion with other professional colleagues and
perhaps the relevant medical insurance provider.

Remember, in law, once one member of staff knows about the facts, the
organisation is deemed to know. And, in law, constructive knowledge of bullying
would satisfy the foreseeability test.

– Tim Field at www.successunlimited.co.uk

– Several trade unions including UNISON, MSF and the GMB have very good
booklets on bullying in the workplace.

– ACAS has recently published an excellent booklet entitled "Bullying
and harassment at work – a guide for managers" available on the ACAS
website www.acas.org.uk

Gillian Howard is an employment lawyer with Howard & Howard,
solicitors

The model policy

– Define bullying

– Give clear and simple guidance on how to complain

– Ensure that the matter is investigated fairly

– Separate the bully and victim if necessary

– Take witness statements from all relevant parties including witnesses who
may have left employment

– Analyse exit interview forms and notes

– Prepare a formal written document containing the allegations in sufficient
detail and an analysis of the complaint with findings of fact but not a
conclusion or recommendation – always being wary of the timing of complaints
and the ripple effect

– Share the contents with the victim and the bully

– Consider whether medical treatment is necessary or appropriate for the
victim or the bully

– Consider cognitive behaviour therapy for those prone to bully

– Ensure that victims feel supported at all times and know that they will
not be allowed to be victimised because of their complaints

– Train staff by role playing and education

– Ensure that the policy is well circulated and kept up-to-date

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