Challenges in seeking justice for victims of bullying and harassment

There are still significant barriers to seeking justice for those who have suffered bullying and sexual harassment in the workplace. Changes in law are needed, argues Thomas Beale, partner at Bolt Burdon Kemp

There has been a recent surge in positive advancements to workers’ rights in the UK.

The pending enactment of the Worker Protection Act 2023, and the new government’s proposed Plan to Make Work Pay, are seeking to make significant improvements to the effectiveness of employment tribunals, facilitating the pursuit of justice for victims of workplace harassment through this route. Although these developments are highly commendable, it is important to acknowledge that the tribunal route may not always be the most suitable recourse for victims of workplace bullying and harassment.

Claimants may find that bringing a claim against their employer in the civil courts is more attractive, as it offers more generous time limits and is less punitive in terms of legal costs than the employment tribunal. However, despite these advantages, there are significant challenges associated with seeking justice through civil routes that remain unaddressed.

Through our Manifesto for Injured People, Bolt Burdon Kemp (BBK) aims to shed light on two key policy gaps exacerbating this issue:

• The absence of a legal definition of bullying
• Limited awareness of the civil claims route

Case Study – facts of the case

A recent case handled by BBK underscores the urgency of addressing these gaps. This case involved a claimant who pursued a personal injury claim against her employer following a traumatic sexual assault following leaving drinks after work.

The claimant, an administrative assistant who had only been with her employer for two weeks, received an invite to a leaving party for a colleague via her work email. The party took place at a local pub and, upon her arrival, the claimant was offered numerous alcoholic drinks by her colleagues and line manager. The claimant soon began to feel extremely intoxicated and unwell.

She was then escorted to a nearby hotel room by her line manager and a female colleague. Her next recollection was waking up in a hotel bed next to her line manager, who was sexually assaulting her. Fortunately, the claimant managed to escape the hotel room and make her way to the hotel lobby. The claimant immediately reported the assault to the police, leading to her manager’s arrest. Following a delayed criminal trial, the court found that the claimant’s heightened blood alcohol content had rendered her unable to consent. Her manager was consequently convicted and sentenced to prison.

The assault and subsequent criminal trial had a profound impact on the claimant’s mental health, resulting in anxiety, hypervigilance and a deep distrust in men. The immense impact on the claimant’s personal and work life prompted her to seek general and special damages, including compensation for a disadvantage on the open labour market.

Legal arguments and the lack of bespoke legislation

This particular case did not meet the criteria for pursuing action under the Protection from Harassment Act 1997. This Act prohibits the pursuit of a “course of conduct” that constitutes harassment of another. As the index assault was an isolated incident, it did not meet the threshold of a course of conduct, which requires two or more instances of abuse.

Consequently, the claimant sought to rely upon the legal principle of vicarious liability in her claim for breach of duty. Under this principle, employers can be held responsible for the wrongful actions of their employees during the course of their employment.

To succeed with this argument, two conditions must be met:

• There must be a relationship of employment, or akin to employment, between the
  defendant (employer) and the perpetrator;
• The wrongful act must be closely connected to the act the perpetrator was employed to perform.
  In this case, the difficulty lay in meeting the second stage, known as the close connection test.

Naturally, assault does not fall within the scope of a manager’s duties. However, the claimant argued that her line manager was acting in the course of his employment, as the event was organised by company employees; he attended the event in his capacity as an employee, arranged the hotel room for the purpose of attending the event, and escorted her to the room with another female employee to ensure her wellbeing.

Despite the strong arguments presented by the claimant, her employer was unwilling to accept liability, citing a failure to satisfy the close connection test. Consequently, the claimant was left without a straightforward route to justice. However, BBK managed to secure a successful resolution for the claimant reaching a settlement with the claimant’s employers.

BBK are advocating for a clear legal definition of workplace bullying to enhance workers’ rights. As evidenced, the current legal instruments do not adequately protect those who have experienced isolated incidents of abuse in the workplace.

Countries such as Australia and the Netherlands have enacted bespoke legislation to prohibit such behaviour and empower victims to pursue redress. Implementing similar legislation in the UK would broaden access to justice for those impacted by workplace misconduct.

Limitation and lack of awareness of the civil claims route

Another challenge the claimant encountered was her limitation period, which dictates the timeframe within which a claim must be brought. In cases of breach of duty, a victim typically has three years from the date of the incident to file a claim. Unfortunately, the claimant’s claim in this instance was technically time-barred, providing her employer with a valid defence.

While the Court may exercise discretion to allow claims to be brought beyond the limitation period, this is not guaranteed. The onus is on the claimant to demonstrate that a fair trial can still take place. This strictly contrasts with the Scottish approach, where defendants bear the burden of proving that a fair trial is no longer feasible.

In this case, the claimant argued that her claim should be permitted to proceed beyond the time limit due to the nature and sensitivity of the issues involved. She asserted that the delay in bringing her claim was due to the psychiatric injuries that she has suffered and the delayed criminal trial against her manager, and consequently, a fair trial had not been compromised. This issue posed a significant risk to the claimant’s case. If the court were to disagree with her reasoning, her claim would fail.

Limitation frequently presents a challenge in civil claims. While victims of bullying and harassment are generally well-informed about the three-month time limits for employment tribunal claims, there is a lack of awareness regarding the civil claims process and its associated time limits. It is common for victims to seek guidance from workplace experts ACAS in regard to work-related issues.

Currently, ACAS offers information on internal complaints, such as grievances, as well as employment tribunal claims.

BBK is calling for an expansion of ACAS’s advisory services to include guidance on the civil claims process. By broadening the range of information available, ACAS can empower victims to consider all legal avenues available to them, enabling them to pursue the most appropriate route in a timely manner.

Legal reform

Although the claimant’s case was resolved successfully, it has underscored the significant challenges in accessing justice through the civil claims route. At Bolt Burdon Kemp, we are actively advocating for substantive legal reforms through our Manifesto for Injured People. By championing these key policy changes, we can make a meaningful impact on the lives of numerous workers in our society and enhance access to justice.

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