Precedent law has now been set – managers who ‘turn a blind eye’ to harassment and bullying may themselves face custodial sentences under the criminal law.
Last year Sheffield Crown Court issued custodial sentences to employees of Bruce Transport Services following findings one of their fellow employees had been routinely bullied.
The general manager of the company received the heaviest sentence of 17 months because, the Judge said, he was in a position of responsibility and could have stopped the harassment, but didn’t.
As Marie Allen, a solicitor at Steeles law firm explains, criminal liability is just one of the potential problems for employers arising from bullying and harassment.
A worker resigned as a result of being physically and verbally bullied by colleagues at work, which included racial abuse. He has brought complaints of race discrimination and unfair constructive dismissal. Are we liable? And what compensation could be awarded in respect of the alleged discrimination?
An employer will also be ‘vicariously’ liable for wrongful acts done by his employees, in the course of their employment if either the act was authorised by the employer; or was closely connected with the performance of their duties.
This would include bullying which amounts to harassment on grounds of sex, race, disability, sexual orientation or religion or belief. If, however, the employer can show that it took all reasonably practicable steps to prevent the bullying, it will not be liable.
Unlike unfair dismissal awards, compensation for discrimination is unlimited and can include compensation for injury to feelings and aggravated damages. Unfair dismissal awards are currently capped at £63,100, including the compensatory and basic awards.
An employer will be liable for unfair dismissal in such circumstances, where the employee establishes that the employers failure to take reasonable steps to prevent the bullying and harassment, amounts to a breach of the implied term of trust and confidence, and that the employee has resigned in response to that breach of contract.
A worker has complained that he has been subjected to shouting and foul language from his manager and is threatening to resign. Our business is conducted in a stressful and demanding environment, where foul language is frequently used. Could he have a claim?
Yes. Last year the High Court held that a manager who had embarked upon a deliberate course of conduct, including frequent use of foul and abusive language to the employee, had destroyed the relationship of trust and confidence between the employee and the employer.
This was despite the fact that the employee had himself resorted to foul language on occasions. The Court held that he ‘nevertheless remained entitled to proper treatment in accordance with his contract.’
What steps can we take to reduce the risk of any future liability arising from the bullying of staff by managers or colleagues?
It is not sufficient for an employer to argue that there was nothing it could have done to prevent a course of bullying. Employers should ensure that they adopt and fully implement sound anti-bullying policies, and train their employees appropriately.
The policy should include a clear statement that all employees have the right to be treated with dignity and that bullying at work will not be tolerated and that employees, who are subjected to such acts, have a right to complain about it.
The policy should also clearly define what amounts to bullying and make it clear that breaches of the policy will be subject to the employer’s disciplinary procedure.