Helen Green, a former company secretary at Deutsche Bank in London, was recently awarded more than £800,000 for psychiatric injury caused by bullying at work.
Unlike other workplace bullying cases, this claim was made under the Protection from Harassment Act 1997, so was brought outside familiar employment legislation. Parallels can be drawn with the recent Majrowski v Guy’s & St Thomas’ NHS Trust case, which found that employers can be liable for harassment of their staff at work.
So where do employers stand with regard to the law on workplace bullying?
Trish Embley, partner in employment group, Pinsent Mason, and Christine Pratt, managing director of HR and diversity management and founder of the National Bullying Helpline, share their views…
Does the current bullying legislation encourage employees to take action if they are being bullied at work?
Trish Embley
The current situation is very confusing both for employers and employees. This lack of clarity must surely deter employees from feeling confident about their rights in courts and tribunals. At the moment if someone feels they are being bullied, they cannot rely on just one single piece of legislation. They would need to see whether they can make a personal injury claim, a Protection from Harassment Act claim or a constructive dismissal claim, plus some form of discrimination claim if the bullying relates to their religion, sex or sexual orientation. The time limits, levels of compensation and grounds that need to be established also vary with each type of claim.
Christine Pratt
Employment legislation is changing at a rapid rate. Much has been done over the last five years to improve working conditions for employees, such as the introduction of the Employment Act 2002, dispute resolution reforms and harassment laws. We are even seeing cases won at tribunal where the claimant has relied on the anti-stalking laws, such as the recent case of Majrowski v Guy’s and St Thomas NHS Trust (see Case of the Month, page 9). One way or another, employees are putting their case forward.
What changes do you think would help?
Trish Embley
It would be easier if existing laws on harassment were extended so that if an employee suffers conduct which violates their dignity or creates a hostile or degrading environment on any grounds, they are able to make a claim. This would have the advantage of providing a clear definition of what is meant by bullying or harassment and further guidance could be taken from existing discrimination case law.
Extending existing harassment legislation would also allow an employee to claim for injury to feelings in cases where they have suffered as a result of bullying, but not suffered psychological injury such as a nervous breakdown.
Christine Pratt
There is still a great deal of ambiguity regarding ‘what is bullying’ and what is ‘miscommunication’ or ‘misunderstanding’. Employment tribunals are often ill equipped to deal with cases that rely on very new legislation. Judges and tribunal chairmen tend to lean on case law to lead the way.
The recent high profile bullying case of Helen Green of City firm Deutsche Bank – who won a payout of more than £800,000 – was won on the grounds of negligence in the duty of care on the part of her employer. What does this say about the state of bullying legislation in the UK?
Trish Embley
Given that employees need to rely on legislation historically designed either to compensate for physical injury or in the case of the PHA to assist the victims of stalkers, it does suggest a gap within existing employment legislation.
Personal injury claims are not easy to establish due to the fact that the employee needs to show that they suffered psychological injury, and that this injury was reasonably foreseeable. It is on the second point that most claims fail.
Christine Pratt
At this time of change, the National Bullying Helpline is seeing an increase in calls from middle management who allege they are the targets of bullying. Groups of employees are coming out with terminology such as: “We know our rights” and “We don’t have to do this, or that”. We call this ‘collective bullying’. Employees are feeling empowered and employers are struggling. Line managers, supervisors and team leaders are finding the ever-changing world of employment legislation, combined with the increase in staff grievances, extremely daunting. All too often line managers are not competent enough to deal with conflict or people management issues and they struggle to recognise potentially contentious issues in the early stages.
What repercussions do you believe the case will have for employers, employees and UK law?
Trish Embley
Unfortunately it is highly likely that a minority of employees will exploit this latest development in the law. It is not unknown for certain employees faced with criticism of their conduct or performance or even attendance record to claim that they are themselves victims of bullying or victimisation by their manager – recognising that attack is often the best form of defence.”
Christine Pratt
Ten years ago bullying in the workplace was regarded as a style of management – even effective management – because the person doing the bullying usually got instant results. As time passed, employers realised that this unacceptable behaviour was having a detrimental effect on the bottom line through high staff absence and turnover.
Case law over the years has brought about a change in attitude. It is also true to say though that hundreds of cases have been brought that were unsuccessful – but each case has played a small, yet significant, part in bringing about change.
Comment
You can have a wonderful anti-bullying policy and send people on training courses, but unless management gets to grips with the problem, people are going to be injured and will want to sue. Words alone are not enough. The culture of an organisation has to change so there is zero tolerance towards bullying. It’s very harmful and people can suffer serious illnesses as a result. But it’s also bad for business, very time consuming and hugely expensive. The only thing that will reduce the problem is if the organisation decides the behaviour will not be tolerated under any circumstances.
Tony Morton-Hooper
Partner, Mishcon de Reya, and Helen Green’s lawyer
The difficulty lies with proving the case – not the law. In most cases an allegation of bullying will be disputed. At very best it will be admitted, but downplayed to a case of workplace banter. So the onus is on the claimant to prove bullying has actually occurred. To do this a claimant has to keep a full record of what’s going on – who said what, when and where – to prove the conduct has taken place. This record of events can then be used to make the appropriate complaints through a company’s grievance procedure. It’s also advisable to talk to a doctor so that you can refer to medical notes. That way the company has a physical form of proof.
Jeffrey Jupp
Barrister, commercial and employment team, Seven Bedford Row
Going to court is a nasty, horrible business and people who are already harassed often don’t have the strength to pursue it to the end. Their concept of justice also disappears the moment they take the legal route. People who have been bullied at work simply want it to stop and return to their jobs. But they are led to believe that the courts are an appropriate battleground. It took Helen Green three years to fight her case and she has been left broken – as is her career. The appropriate place for solving bullying is in the workplace where you can raise complaints without fear of prejudice and know that they are going to be dealt with fairly. But to do this, an employer has to encourage people to speak out and have the right procedures in place.
Lyn Witheridge
Chief executive, Andrea Adams Trust
There is a great need for employment legislation to tackle bullying and harassment at work. For instance, if harassment occurs because of discrimination, then an employee is allowed to pursue a claim through the employment tribunal system. This is not so where bullying is because of any other reason or where discrimination cannot be proven. Harassment is harassment and all employees should have the same protection against harassment under employment law. Many victims of bullying are precluded from the tribunal system because of the current legislation, and some employers do not take complaints of bullying seriously. In many cases a stick is needed just as much as a carrot.
Jo Anne Brown
Founder and chair, Just Fight On! Centre Against Workplace Bullying UK
Key points
There is no specific legislation on bullying. Employers have a duty under the Health and Safety at Work Act 1974 to ensure the health, safety and welfare of their employees. If they do not do this, they are breaching an individual’s contract of employment. The Management of Health and Safety at Work Regulations also sets out how to do this.
Anti-discrimination legislation, the Sex Discrimination Act, Race Relations Act and Disability Discrimination Act, may also apply in some instances. The Criminal Justice and Public Order and the Protection from Harassment Acts may also afford protection.
At the same time, the Employment Rights Act deals with the right to claim unfair constructive dismissal in the face of an employer’s breach of contract, which could include a failure to protect health and safety.
Bullying may also be considered a breach of the Criminal Justice and Public Order Act 1994.
As each case is unique, it is essential to obtain expert advice on all of these measures before any reliance is placed upon them. Particularly, as both employers and/or the bully may find themselves facing fines, compensation and possibly a jail sentence.
Tell us what you think
Should legislation against bullying be more clear cut? E-mail dawn.spalding@rbi.co.uk
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