Victims can take legal action against their bosses if workplace abuse by colleagues is allowed to continue. Rein in the workplace bullies. Otherwise, their victims could sue their employer for stress.
That is the effect of the decision by the House of Lords in the recent landmark case of Waters v Commissioner of Police for the Metropolis. The court made it clear that even if stress results from the malicious actions of co-workers, rather than any policy or actions of the employer, it is still the employer who can be liable to pay for the consequences.
The clear message to employers is to re-double their efforts to stamp out bullying in the workforce. It is no longer enough simply to disapprove. The law now says that if employers are (or should be) aware of bullying, they should act to stop it. Best practice would say make sure the culture of the organisation is such that any bullying is rapidly discovered and immediately quashed.
The victim was a police officer. She alleges that within six months of her starting, she was subjected to a serious sexual assault in the section house by a fellow officer while they were both off duty. She tried to sue the police for negligence for allowing this to happen, but failed. The courts said that her assailant could not possibly be said to be acting in the course of his employment, not least because they were both off-duty when he attacked her.
However, it is what allegedly happened next that led the House of Lords to its decision. The victim says, in summary, that because she complained about a fellow officer, her colleagues at virtually every level in the force closed ranks against her. Her complaints ranged from unfair reports, through lack of career development to plain harassment. She says pornographic and offensive material was left in her locker and displayed in her workplace. One cartoon directly referred to the rape.
If these allegations are true (and they are as yet untested – the House of Lords was deciding a preliminary point) then it is not surprising that she suffered severely from stress. She sued the police.
The High Court struck out her claim. The Court of Appeal refused to reinstate it. Partly, this was for policy reasons. They did not want to open up what they saw as internal police disciplinary matters to the courts. However, they also refused to say the Commissioner owed a duty to prevent the bullying from happening, such that she could sue him for negligence if he failed.
The House of Lords did not agree. They seemed to accept the analogy with the well known duty of employers to provide a safe system of work. Employers must safeguard the health and safety of their employees. In principle, they seem to say, employers must prevent bullying in the same way as they must, for example, put a guard rail on a dangerous machine.
The ruling does not mean that every case of bullying will result in a claim against the employer. There is still no specific concept of "harassment", sexual or otherwise, under which employees can bring a claim. Employees will have to show that it was the bullying that made them ill. That will not be easy. Plus, they will have to show that the bullying was such that the employer knew (or should have known) about it and failed to take reasonable steps to stop it.
However, employers should still be reviewing their bullying/harassment and grievance policies and procedures to make sure that bullying is not tolerated in their organisations. Only if those polices and procedures are properly implemented and, to use a slightly unfortunate word in the circumstances, policed can they be sure they are protected.
Key points
- Remember employers can be sued if workplace bullying makes staff ill
- Check bullying/harassment and grievance procedures but remember that is not itself enough
- Make sure that the workplace culture does not tolerate bullying and encourages victims to complain
By Jonathan Chamberlain, a partner in the Employment Team at Wragge & Co
