Bullying – it’s all the rage

The problem of bullying at work is moving up the political agenda, with calls for tougher legislation to combat the problem. However, victims of workplace bullies already have a number of avenues open to them and employers can find themselves seriously out-of-pocket if they fail to respond adequately to complaints writes Abigail Trencher.

Investment bankers do it, lawyers do it, Facebook users do it and now even Beefeaters allegedly do it. Bullying is still making headlines and seems to be as prolific as ever, judging by a survey conducted by UNISON, figures from which were released this month.

According to the research, one in three women who took part said they are being bullied at work, 33% have been bullied in the last six months and 66% of those say it is ongoing. Some 81% thought tougher legislation was needed to make bullying at work as serious as harassment.

From the employer’s point of view, bullying can be an expensive issue. Helen Green, a secretary working for Deutsche Bank, won £800,000 after she was bullied by four female colleagues. Steven Horkulak won nearly £1m in damages from his employer Cantor Fitzgerald after he was forced to resign following months of bullying at the hands of his boss.  

However, the law does not as yet protect employees from bullying in the same way as it protects them from acts of harassment, particularly harassment on discriminatory grounds.

Bullying at work – what is the legal position?

As the cases of Helen Green and Steven Horkulak show, the courts are alive to the issue of bullying at work but as the law currently stands there is no specific employment legislation that protects employees from being bullied at work. Helen Green won her damages in a personal injury claim before the High Court, having suffered a nervous breakdown due to the bullying she had experienced. Steven Horkulak bought a claim of constructive wrongful dismissal, also in the High Court.  

Not all victims of bullying will suffer ill health to the extent that Helen Green did to warrant bringing a personal injury claim, nor will they always be in a position to resign from their employment in order to claim constructive dismissal. Also claims brought in the High Court can take a long time to reach a full hearing (Helen Green had to wait 4 years) and there are also serious cost implications. As the loser will usually have to pay the winner’s costs in High Court litigation, the vicissitudes of litigation are such that it takes a brave person to proceed down this route.

In recent years we have seen the emergence of a new area of protection open up to employees under the Protection from Harassment Act 1997. This Act was primarily concerned with protecting celebrities from being stalked. However, the Court of Appeal in the case of Majrowski v Guy’s and St Thomas’ NHS Trust held that under this Act employees can bring a claim of vicarious liability against their employer where another employee has pursued a course of conduct, in the course of their employment, that has caused them alarm or distress. Employment tribunals do not have jurisdiction to deal with claims under the Protection from Harassment Act 1997, so employees will need to bring such claims in the civil courts, with the same costs issues arising.

Where the bullying is on the grounds of someone’s race, sex, age, sexual orientation, religion and belief or disability, then it is likely to constitute harassment entitling that person to bring a claim under discrimination legislation in the employment tribunal. There are significant benefits of being able to do so: the employment tribunal system is far less formal than the civil courts and the employee would not need to be legally represented; claims proceed to a full hearing far quicker; and, each side will bear their own costs with awards of costs remaining relatively rare and usually only made where one party has acted vexatiously or unreasonably. One of the greatest benefits however is that an employee can bring a claim of discrimination whilst remaining in employment, avoiding the need to either resign or have suffered a serious physical or psychiatric injury.

If, however, the act of bullying is not related to a discriminatory ground, then an employee’s ability to bring a claim in the employment tribunal is largely limited to constructive dismissal. This will require the employee to resign, something they are only likely to do when they have exhausted all other avenues.

Should employers be concerned?

All employers – including local authorities – should be concerned about bullying at work. The adverse publicity that bullying cases attract and the financial payments that may be awarded (particularly where an employee’s resignation leads to significant pension losses) mean that no employer can afford to turn a blind eye to bullying, regardless of the grounds on which it takes place.

There is also the management time that will be taken up dealing with employment tribunal and civil claims – this should not be underestimated. Much time is also likely to be spent by managers embroiled in grievances emanating from acts of bullying. Employees who are subjected to bullying are likely to be less productive and suffer with stress and other ill health conditions, leading to sickness absences. This is supported by UNISON’s survey which found that 74% of respondents who had experienced bullying at work said it affected their physical and mental health, with 34% saying it kept them away from work and 10% saying they had taken between 41 and 100 days off work.

What should employers do?

First, all employers should regularly review and update their policies relating to bullying and harassment, providing a range of examples of the type of conduct and behaviour that is not be acceptable. It is important that policies do not sit and fester but are regularly drawn to the attention of employees so that they are well known and understood by all of them, particularly line managers.

Second, it is essential that employees are properly trained on bullying and harassment, so they know what it is and therefore know what they should not do. Line managers should receive in-depth training so they can spot the signs and know how to effectively address them. Ideally, a good manager should be alive to a bullying issue before a complaint is made. An employer will have little prospect of successfully defending a claim unless it can show the alleged bully/harasser had received training – so records of all training provided should be kept.

Third, employees should have (and be aware of) a clear and safe route to make a complaint. Ideally they should be encouraged to raise their complaint with someone who is equipped with the necessary tools to deal with it effectively.  

Fourth, complaints and incidents of bullying and harassment need to be addressed consistently and effectively. They should be investigated thoroughly and impartially and appropriate action should be taken.

Finally, employers should consider putting in place employee assistance programmes to help employees who are experiencing problems at work, or at home, which may affect their ability to perform their work or their working environment.

Abigail Trencher is an associate at Birketts LLP
www.birketts.co.uk