Employment law clinic No 13 Bullying

THE CHALLENGE: One of our key clients has got something of a
reputation for bullying our staff – particularly secretaries and
receptionists.  We have spoken to him
but it does not seem to make a difference. We cannot afford to lose his
business. What shall we do? Elaine Aarons and Robbie Gilbert, partner and HR
consultant respectively in the Human Resources Group at Eversheds give their
views

Legal issues

The employer needs to consider the following possible risks:

– A personal injuries claim if the employee becomes ill as a result of the
harassment

– A disability discrimination case if harassment results in a disability

– A constructive unfair dismissal claim

– A sex/race discrimination claim possibly including victimisation

– Possible criminal prosecution and/or a claim for damages under the Public
Order Act 1986, health & safety legislation and the Protection from
Harassment Act 1997

An employer who fails to take adequate steps to protect his employees from
clients may face all or any of these claims.

In discrimination claims for harassment or bullying, the employee must have
been subjected to a detriment (the risk of harassment being sufficient) by an
act or deliberate failure to act on the part of the employer. Exposing
employees to uncongenial or unpleasant environments or failing to take steps to
prevent persistent unpleasantness or harassment by clients can be enough.

Employment liability

Moreover, mishandling the situation once the employer has received a
complaint from an employee can also lead to further acts of discrimination
(Balgobin and Francis v LB of Tower Hamlets, 1987, EAT, IRLR 401.

Before a discrimination claim against the employer can succeed, it needs to
be shown the event in question was something which was sufficiently within the
employer’s control (Burton and Rhule v De Vere Hotels, 1996, IRLR 596. This
means he could, by the application of good employment practices, have prevented
the event or reduced its extent.

The more extreme and determined the offensive attitudes of the client, the
more likely the employer will be liable if he does nothing to protect his
staff. Similarly, an employer’s knowledge or foresight might be relevant to the
level of control or steps expected be to taken. (Ado-Jingwa v Connex South
Eastern, 2001, ET, case no. 1101612/D)

Strictly, the analysis in relation to the other possible claims listed above
may differ from the approach to discrimination claims, but if employers applied
the approach described above it is unlikely they would go far wrong.

So what must an employer do? In a recent case of a black social worker who
was racially abused by a client, a tribunal concluded that although the
employer was not responsible for the client’s conduct, the employer should have
written to the client, and probably to his solicitors, within a few days of the
incident, explaining their attitude to racial abuse and threats and pointing
out the client’s obligations to act lawfully, (Simpson v LB of Lambeth November
2001, ET, case no. 23014241)

In some cases, where the employee is known to be vulnerable to personal
injury, or indeed already has a disability that would be exacerbated by further
harassment, the employer may be obliged to protect the employee from any
contact with the client concerned. (Hatton v Sunderland, 2002, COA 2AUER1)

HR Points

Presumably you had already investigated the complaint properly – so what
next? Here are a few options to consider:

1. Your contractual relationship is probably with the client’s business, not
him personally. On such an important contract you should have more than one
contact. Now is the moment to speak to one of the others, preferably at a more
senior level. Check whether they have a policy on bullying and harassment. Do
they offer training or counselling? En-courage them to use their policy in this
case.

2. Send the client a copy of your own policy (if you don’t have such a
policy, it is time you did!). Emphasise in a covering letter your commitment to
the policy and that you always act against transgressors – whether they are
your own staff or not. You could add that you expect them to act similarly
against any of your staff. Let your staff know that this is happening.

3. Reorganise your approach to the client to minimise the risks to your
staff. Send more senior staff to visit him. Give him the mobile numbers of the
staff he really needs to contact to bypass those affected.

4. Consider monitoring by CCTV or by recording phone calls so that you can
build up evidence – but ensure both here and in framing your policy to take
care to respect data protection requirements. Callers have to be made aware and
the action must be proportionate to the need.

Conclusion

Remember the potential size of the penalties if you do not look after your
staff properly in this area – an important customer, perhaps, but if he treats
your staff like this, can you really afford to keep him?

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