Last month a City lawyer settled for an undisclosed multi-million pound sum following a £19m claim for bullying. Complaints about bullying are familiar stories and repeat themselves in occupational health (OH) referral meetings, HR offices, and – when complaints become claims – lawyers’ meeting rooms every day of the week. For example:
A new manager insists on reviewing an under-performing employee’s communications before they are sent. The employee feels picked on and undervalued.
The ‘quiet one’ turns down an invitation to join colleagues at the pub – and isn’t asked again. She feels excluded and withdraws into herself.
A team leader only communicates with team members via e-mail (to ensure there is no confusion) but they sit just 10 yards away. They feel patronised and resentful.
A hardworking employee has a late holiday request refused. It feels like the final straw of exploitation.
A working mother feels constantly on the run because younger colleagues work late and don’t appreciate she must leave work early to collect her child. Her boss tells her just to be a bit more assertive. She thinks no-one understands her situation.
These are all classic scenarios from which bullying claims arise. When an individual perceives they are being bullied and that there is no respite, this tends to spiral into sporadic and then long-term absence from work, as well as stress, depression, dependence on alcohol or drugs, and the physical symptoms that accompany such mental conditions. More expensively in terms of legal awards is the exacerbation of pre-existing or latent conditions (such as depression, myalgic encephalomyelitis (ME) or chronic fatigue syndrome (CFS), migraine, or post-traumatic stress disorder (PTSD).
Legal building blocks
There is no such thing in law as a claim for bullying; it has no legal definition. Claims are brought under one (or more) of four legal categories:
Constructive dismissal A claim for a fundamental breach of contract which has cut to the root of the employment relationship, making the employee’s position untenable. The employee resigns with claims for notice-money and compensation for unfair dismissal.
Discriminatory harassment This arises where a person suffers unwanted conduct on the grounds of sex, race/nationality, disability, religion/belief, sexual orientation or age which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, and which causes the victim some form of detriment. There must be a causal link between the behaviour and the “protected class” of the individual (such as race, sex, etc).
Civil or criminal harassment under the Protection from Harassment Act 1997. The behaviour must have crossed the line from the “regrettable” to the “unacceptable”, and must be of an order which would sustain criminal liability. Although often threatened, successful claims in the workplace are rare.
Personal injury claims Brought in the civil courts (or the employment tribunal in conjunction with a discrimination claim) to recover compensation for an employer’s negligence in allowing the bullying situation to develop, causing mental or physical injury. Claims for breaches of health and safety legislation may also arise.
Care should be taken to start out with the right policy (not necessarily the harassment procedure – see above).
Some bullying complaints will be made via a confidential reporting line. This makes investigation difficult for HR and OH professionals. Employees must understand that an effective investigation, and resolution, is impossible without certain information. Although counselling is no panacea, as case law has proved, counselling can help in preparing employees for giving statements.
Anonymity may not be feasible; counsellors may explain that if a complaint is not upheld – and often even when it is – employees may have to continue working with the bully.
Employees cannot require that an alleged bully is automatically removed from their working circle. In large workplaces, it is desirable to separate the bully and the victim. This may have a therapeutic impact on the complainant’s mental state. However, recommendations from OH are most helpful when they are not over-prescriptive. The alleged perpetrator is innocent until proven guilty, and redeployment before any accusations are upheld could seriously affect their career (and health). The perpetrator may be able to bring valid claims against the employer (see list one to four, left) if hasty decisions are made.
Obviously, perpetrators must be subject to appropriate disciplinary sanctions, but only after full investigation of the facts and a proper hearing at which they can defend their actions. One should be particularly wary of complaints raised by, for example, persistent under-performers (who resent being actively managed); employees engaging in ‘displacement’ (who have other stressful issues in their lives); repeat complainants (who may just be in the wrong job or company); and those with an axe to grind (eg – a failed promotion, or disappointment with pay or bonuses). Bullying and poor communication are often the product of the bully’s insecurity and lack of confidence, and they may need help.
When/if the victim or bully returns to work, often after some weeks, care should be taken to ensure they are properly prepared for the environment. Training in confidence/assertiveness or effective communication may assist both victim and bully. They should be encouraged to communicate professionally, but avoidance of one-to-ones is desirable from a legal viewpoint.
Sadly, many victims of bullying never return to their workplace. Many take long-term sickness absence, and some take years to recover the confidence to work again, even in menial roles. It behoves all directly and indirectly involved with employees – OH practitioners, doctors, lawyers and HR professionals – to ensure that the first priority is not process or legal protection, but repairing working relationships wherever possible.
Anne Pritam is a partner specialising in employment law at City firm Stephenson Harwood. She is particularly interested in the overlap of OH, HR and the law, and has addressed the RSM Occupational Medicine Section and SOM regional groups. She is a trainer on the At Work Partnership Certificate in OH Health Law.