Bullying
in the workplace is an increasing problem. Often considered to be purelya
health and safety issue, a more holistic approach is needed to tackle the
problem, by Karen Seward & Sheila Fahy
Bullying
has moved from playground to workplace. The belligerent boss with poor management
style exists in every workplace, and statistics show that employers are paying
a heavy price, with a 12-fold increase in stress claims over the last two years.
The
first nationwide survey of workplace bullying to be undertaken across a number
of occupations and sectors in Britain was conducted in 2000.1
Its
definition of bullying emphasised the negative, persistent and long-term nature
of the experience.
It
found that about one in 10 people had been bullied over the previous six
months, split equally over gender and age groups. Bullying affects workers and
managers equally. The study also found that bullying had a significant effect
on physical and mental health, and the Health &Saftey Executive (HSE) has
identified it as a significant risk factor in work-related stress.
In
the UK, we have sophisticated employment and health and safety laws. This
creates a minefield of liability for any practitioner, whether in occupational
health or human resources, and the need to adopt a holistic approach, pulling
together both areas, is vital.
What
is bullying?
Bullying
is not a technical term. It covers a vast range of behaviours. A good starting
point is Acas’ no-nonsense guidance on bullying and harassment at work, which
characterises bullying as "offensive, intimidating, malicious or insulting
behaviour, an abuse or misuse of power through means intended to undermine,
humiliate, denigrate or injure the recipient".
Examples
of harassment and bullying from the both the Acas guide and the TUC’s website
on bullying include:
–
Copying critical memos about someone to others who do not need to know
–
Ridiculing or demeaning someone – picking on them or setting them up to fail
–
Overbearing supervision
–
Deliberately undermining a competent worker by overloading and constant
criticism.
Bullying
can also take on a corporate quality. Corporate bullying is often about
presenteeism, where employees stay at work longer than necessary because (real
or imagined) office culture demands it. Pressure to work excessively long hours
on a regular basis can take a number of forms, including the ‘carrot’ of
increased remuneration or the ‘stick’ of redundancy or other dismissal.
Legal
framework
As
the law currently stands, there are no specific rules dealing with workplace
bullying. There are, however, numerous legal remedies available to employees
who fall victim to oppressive behaviour. Liability issues explain why bullying
has been on the European agenda for some time.
In
2001, the European Parliament passed a resolution on bullying. It stated that
it is a serious problem at work and urged member states to review and, if
appropriate, supplement their existing legislation and review and standardise
the definition of bullying.
In
March last year, the European Commission, as part of its 2002-2006 health and
safety strategy, identified "psychosocial" problems and illnesses,
including psychological harassment and violence at work, as a new risk. It has
stated its intention to issue a proposal for a directive on psychological
harassment and violence in the workplace.
Health
and Safety at Work etc Act 1974
Under
section 2 of the Health and Safety at Work etc Act 1974 (HSWA), every employer
should ensure the health and safety of its employees, so far as is reasonably
practicable and, if it fails to do so, it commits a criminal offence. Penalties
range from fines of up to £20,000 and/or up to six months’ imprisonment.
Senior
members of a company, such as directors, company secretaries and managers, may
be prosecuted if the breach of the Act was committed with their "consent
or connivance" or can be attributed to their negligence.
Where
an employer does not take adequate steps within the workplace to eradicate
bullying, in serious cases, employer and senior management may find themselves
in trouble.
Although
the day when the HSE prosecutes company managers for allowing bullying to go
unchecked is some way off, compliance with the very high standard set by the
statutes needs to be a top priority. The reason for this is that insurance
companies are increasingly requiring employers to demonstrate compliance as a
precondition of ongoing insurance coverage.
Negligence
Insurance
is key because of the growing incidence of negligence claims facing employers.
The common law imposes a duty upon employers to take reasonable care to provide
a safe system of work and competent fellow employees.
Given
the ever-increasing awareness of the psychological and physical effects of
sustained bullying within the workplace, such inappropriate behaviour is to be
regarded as a reasonably foreseeable hazard. Therefore, employers can, and are,
liable for negligence where they know, or ought to have known, of the risks but
failed to take reasonable steps to prevent damage arising.
The
case of Walker v Northumberland County Council, 1995, IRLR 35 established that
an employer could be found liable for a stress-related illness.
It
is clearly foreseeable that, where individuals are victims of campaigns of
bullying, they may suffer stress-related illnesses, which, following Walker,
may entitle them to receive significant compensatory awards. Many more recent
stress cases, including the Sutherland v Hatton decision in 2002, have confirmed
the Walker approach.
Another
recent case, Young v The Post Office, 2002, EWCA Civ 661(CA), serves as a
warning to employers that, where stress is foreseeable, effective management is
key.
In
Young, the court upheld a damages award of £94,000 for an employee who returned
to work after a nervous breakdown, then suffered a second period of
stress-related illness. The Post Office (PO) arranged for Young to return to
work on a flexible basis but failed to ensure that its plans were carried
through.
In
the court’s view, the PO was in breach of its duty of care as it was reasonably
foreseeable that Young’s illness might recur following his return to work.
The
court also rejected the PO’s argument that Young had been contributorily
negligent by inflicting the stress on himself by taking on too much work. Young
was psychiatrically vulnerable and the court recognised that it would be rare
for an employee to have to take responsibility for working hard in these
circumstances.
Breach
of contract
A
further potential remedy available to an employee who is being bullied at work
is a claim for breach of contract, specifically a breach of the implied term
that an employer will provide a safe system of work.
Case
law – Waltons & Morse v Dorrington, 1997, IRLR 488 (EAT) – has established
that an employer is under a duty to provide a reasonably tolerable working
environment.
It
is important to realise that where an employer breaches his duty of care or
employment contract, and damage results, the employee’s ability to mitigate his
loss by obtaining new employment quickly is severely curtailed. This has sent
the cost of claims, and the cost of settling them, rocketing.
Discrimination
If
bullying is combined in any way by reason of sex or race, it may amount to
unlawful direct discrimination contrary to the Sex Discrimination Act 1975
(SDA) or the Race Relations Act 1976 (RRA).
Similar
rules exist under the Disability Discrimination Act 1995 (DDA), if the bullying
or harassment is on the basis that the individual is disabled.
Employer’s
liability for employees’ unlawful acts
Provisions
within the SDA, RRA and DDA serve to make an employer liable for the
discriminatory acts of employees where those acts are done "in the course
of the employee’s employment".
There
is a potential defence to a discriminatory claim if the employer can prove that
it took such steps as were reasonably practicable to prevent the employee from
doing that act or from behaving inappropriately. However, it will only be the
most proactive employer who can avoid liability, by adopting the measures set
out in the box on p17.
Unfair
dismissal
An
employee with one year’s service may bring an unfair dismissal claim where he
or she has been dismissed for a reason connected with being bullied or where
the person has resigned, claiming constructive dismissal following bullying.
Where
an employee successfully pursues a claim of unfair dismissal, compensation will
be awarded, comprising a basic award of up to £7,800 dependent on their age,
length of service and salary, together with a further compensatory award of up
to £53,500, the exact amount of which will depend on the amount of any loss
suffered.
Conclusion
Bullying
is not new but the need to manage it is more critical than ever. Liabilities
have sprung up from every conceivable quarter and over the whole range of
employment and occupational health and safety law. The need for OH
practitioners to get involved in territory traditionally policed by their HR
counterparts has never been more pressing.
Partner
Karen Seward and professional support lawyer Sheila Fahy are members of
international law firm Allen & Overy’s employment, pensions and incentives
dept
Reference:
1.
Destructive Conflict and Bullying at Work, April 2000, sponsored by the British
Occupational Health Research Foundation, by Helge Hoel and Cary L Cooper
Taking
precautions
Have
a dignity at work policy
Effective
policies and procedures should be put in place making clear that:
–
Bullying on any grounds is unacceptable
–
Employees found to have bullied others will be subject to disciplinary
proceedings
–
Employees subject to bullying have a right to complain without victimisation.
The
policy should also make provision for complaints to be made to someone other
than the employee’s direct line manager (who may be the bully) and, ideally, to
an independent person trained in harassment. There should also be provision to
allow a complaint to be made to an individual of the same sex.
Investigate
claims thoroughly
Following
a complaint:
–
A prompt and thorough investigation should be carried out in accordance with
procedure
–
Consideration may need to be given to suspending the alleged bully
–
Consideration may need to be given to ensure the complainant is not required to
work with the bully during the investigation.
If
a complaint is substantiated, the bully should be disciplined in accordance
with the disciplinary procedure.
This
is particularly difficult, but essential, when the bully is a high performer,
who others may look to as setting behavioural standards. The effectiveness of
the policy statement and bullying procedure should be regularly reviewed.
Look
for the warning signs
Employers
must educate their line managers to act as a first line defence. There is no
room for complacency. All managers, whether they are HR or a line manager, must
receive training to assist them in identifying the signs of bullying. Symptoms
may include poor morale, absenteeism and high staff turnover. It may also be
appropriate to have exit interviews with departing employees to ascertain their
reasons for leaving.
Training
managers
Managers
must be trained to adopt effective people skills. So often, managers are
promoted because they are good at their job and they need help to manage their
staff fairly, reasonably, and with dignity and respect. Legitimate performance
concerns must be addressed on a regular and consistent basis.
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Studies
show that employees suffer the most stress when they feel their objectives and
regular reporting lines are not clear and they are ‘cast adrift’.
Employers
must also be sensitive to the fact that pressure applied on senior management
in particularly difficult economic circumstances is likely to result in that
pressure being pushed down through organisations to those lower in the chain;
too often to those who already feel less in control of their work than senior
colleagues.
