How are bullying and harassment defined by law?
Bullying and harassment are generally considered to be unwelcome and unwarranted conduct that results in detrimental treatment.
Under the statutory definition, harassment occurs where, on the grounds of sex, gender reassignment, race, religion or belief, sexual orientation, disability or age, one person engages in unwanted conduct that violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. The Sex Discrimination Act 1975 sets out an extended definition of harassment that covers both harassment on the grounds of sex (or gender reassignment) and harassment of a sexual nature. The Act covers the situation where a person is treated less favourably for either having rejected or submitted to either form of harassment.
While there is no statutory definition of bullying, conciliation service Acas defines it as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient”.
If an employee alleges that they have been subjected to bullying or harassment at work, what proceedings might they bring?
Employees who wish to start proceedings for bullying must either rely on legislation that covers discrimination and harassment, or resign and claim constructive unfair dismissal.
It is not possible for an employee to bring a free-standing claim for bullying in an employment tribunal. Instead, an employee who alleges that they have been subjected to bullying or harassment at work might bring a tribunal claim for: negligence for breach of the employer’s duty of care resulting in personal injury breach of an implied or express term of the employment contract unfair dismissal where the breach of contract amounts to a constructive dismissal breach of a statutory duty or discrimination or harassment under the discrimination legislation.
Recent case law (see below) means that an employer should also be prepared for a claim under the Protection from Harassment Act 1997 (PHA).
Can an employer be vicariously liable for an employee’s breach of the PHA?
Yes. The recent House of Lords decision in Majrowski v Guy’s and St Thomas’s NHS Trust  IRLR 695 HL created an alternative course of action for staff who have been subjected to harassment – namely a right to bring a claim under the PHA against their employer.
In Majrowski, the House of Lords held that an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of employment. Therefore, a bullied or harassed employee will be able to bring a claim both against a fellow employee (the perpetrator) and against their employer for vicarious liability for the perpetrator’s breach of the PHA.
So is it now easier for an employee to bring a claim against their employer for alleged bullying and harassment?
Yes – bringing a claim under the PHA is more straightforward for an employee than seeking to rely on either common law principles in personal injury or discrimination legislation, or leaving employment and claiming constructive dismissal.
To bring a claim under the PHA, an employee only needs to prove that they suffered from anxiety as a result of the harassment, whereas under common law, they must prove the harassment resulted in a recognisable psychiatric condition. An employee does not need to prove that the anxiety (or personal injury) that they experienced was foreseeable, thereby avoiding the strict test that was established in Sutherland v Hatton  and Barber v Somerset County Council .
The statutory defence available to employers under the discrimination legislation – to demonstrate that the organisation took all reasonable practical steps to prevent the harassment – is not available to employers under the PHA. Note that an employee has six years to bring a claim, rather than the shorter three-year period for personal injury claims.
Staff may be discouraged from bringing a claim under the PHA due to the cost implications of bringing such a claim in the county court or High Court. However, for the determined litigant, there is the possibility of recovering costs against the employer if the case is successful.
What is the most effective way of avoiding claims in relation to bullying or harassment?
Some organisations tolerate a management style that allows or even encourages bullying or harassment, and will therefore require cultural change to reduce the risk of claims, while others may only experience one-off incidents. However, the best way to reduce such incidents is by putting a formal bullying and harassment policy in place and training managers. Furthermore, prompt and effective use of grievance and disciplinary procedures to deal with any instances of bullying or harassment will demonstrate the organisation’s intolerance of such behaviour.
By Sarah-Marie Williams, solicitor in the employment team, Clyde & Co
For advice on what your bullying policy should include, see October’s issue of Employers’ Law magazine