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 Laura Mitchell, Associate, Clarion Solicitors LLP
New research conducted by the Trades Union Congress has revealed that one in seven people have been bullied at work, with higher paid staff more likely to suffer.
For many employers, identifying and managing incidents of bullying in the workplace is fraught with difficulties.
What is bullying?
The concept of bullying does not have a legal definition as such, and is often used to describe a range of behaviours from ignoring/excluding someone to ridiculing or even threatening an individual. While most people will agree on what might constitute an extreme case of bullying, there are a number of ‘grey areas’ which can cause problems in practice.
Constant criticism of a staff member could be deemed bullying by one person but ‘firm management’ by another and equally, jokes at an employee’s expense could be deemed to be bullying behaviour by one employee but simply ‘office banter’ by another. All this leaves employer’s confused about what action, if any, should be taken. The victims, on the other hand, are left feeling that others will consider them weak or not up to the job if they speak up about the way they are treated, or in the latter example, as not having a sense of humour. However, employees who are subjected to bullying do have some legal protection available and employers should take note.
What are the risks to employers?
While it is not possible to make a direct complaint of bullying to the Employment Tribunal, employees are able to bring complaints under law covering discrimination and harassment. In order to bring a successful discrimination claim, employees need to be able to show that they have been mistreated unlawfully, namely on the grounds of their sex or race, disability, sexual orientation, religion, belief or age.
Ignorance of the behaviour itself will be no defence, because the employer itself can be vicariously liable for the conduct of its employees if it was done in the course of the employee’s employment. There is no statutory cap for discrimination awards, which could be in top of any award for unfair dismissal that the employee may have.
Duty of care
Employer’s have a ‘duty of care’ towards their employees. This means that if the mutual trust and confidence that is deemed to exist between every employer and his employee, is broken as a result of the bullying, to the extent that it is considered a fundamental breach of that contract, then the employee may resign and be able to claim successfully that the resignation amounted to a ‘constructive dismissal’. Compensatory awards for unfair dismissal claims are currently capped at £60,600, albeit the size of such awards depends on a number of factors.
Thus, the potential cost to an employer of failing to address bullying in the workplace can be crippling. As well as the cost of any compensation awarded by the tribunal, a recent study revealed that win or lose, employers spend an average of 15 days in management time dealing with each tribunal claim. When you consider that statistics show that each year as many as 18.9 million working days are lost to bullying and up to half of all stress-related illnesses are a direct result of bullying, employers really cannot afford to let bullying go unaddressed.
What can employers do to protect themselves?
It is accepted that Big Brother is not always watching, and employers cannot see, hear and control everything that happens in the workplace, but there are simple procedures that can help protect against what can be costly claims.
• Keep an eye out for possible signs of bullying and harassment.
Signs may include:
- Absenteeism – if this is more frequent or for longer periods than usual.
- High staff turnover – particularly if it occurs in a particular section or where staff work for a particular manager.
- Stress symptoms – including fatigue, anxiety, depression.
- A change in the individual’s behaviour or performance at work.
• Implement a bullying and harassment policy – implementing a formal policy will ensure that all employees are aware of the standards of behaviour that are expected of them.
• Ensure that the policy is linked to the company’s disciplinary and grievance procedures.
• Advertise the availability of the policy to all staff, including during any induction process.
• Make sure that all of the management team are seen to be fully committed to the policy.
• Ensure that those who are responsible for managing staff have sufficient training on their responsibilities.
• Deal with any complaints of bullying from employees promptly and fairly.
• Keep note of any complaints so that you can detect any patterns of inappropriate behaviour.
• Review the policy from time to time to ensure that it is working properly.
With the risk of tribunal claims and the associated costs of sick pay, staff turnover and lost production, turning a blind eye to bullying can be a very expensive mistake to make.
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