What is bullying?
There is no legal definition of bullying but ACAS describes it as: 'offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient'.
Bullying can take many forms, from the obvious such as rude or disrespectful treatment or public humiliation, to perhaps the less obvious such as excessive monitoring or criticism or exclusion and isolation.
Bullying may also amount to prohibited harassment under the various different strands of equality legislation. These laws provide that it is unlawful to harass someone by engaging in unwanted conduct of a sexual nature or conduct which is related to someone's gender, gender reassignment, race, religion/belief, sexual orientation, age or disability. The conduct must have the purpose or effect of violating another person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Similar provisions are contained in the new Equality Act, due to come into force in October 2010.
Why do employers need to address bullying?
Workplace bullying poses a series risk to staff morale as well as staff performance and productivity. It also impacts directly on absence levels. A 2010 study funded by the Institution of Occupational Safety and Health (IOSH) found that bullying by workplace colleagues significantly influences levels of stress. In turn, a 2009 CIPD report on absence management showed that stress was the number one cause of long-term absence among non-manual workers and the number two cause of short-term absence.
Workplace bullying can also lead to a risk of significant legal liabilities for employers, including:
An employee who suffers a psychiatric injury as a result of workplace bullying can bring a claim against their employer based on negligence. To succeed in their claim, an employee has to show that an employer has breached the duty of care owed to the employee, that it was reasonably foreseeable that an injury would result from the breach and that a loss, in the form of personal injury, has actually occurred.
Damages are not limited by statute and can include compensation for pain, suffering and loss of amenity, along with past and future loss of earnings. The total amount can be significant. In the 2006 case of Green v DB Group Services, the successful employee was awarded over £800,000.
An employee who experiences bullying at work may choose to resign and bring a complaint of unfair constructive dismissal in the employment tribunal.
In these circumstances, the claim would be based on an argument that the workplace bullying had fundamentally breached the employer's implied contractual duty of trust and confidence, entitling the employee to resign and claim compensation. Compensation for successful claims is capped at £65,300.
Employers are liable for any acts of harassment perpetrated by their employees in the course of their employment whether or not the act of harassment was done with their knowledge or approval. However, an employer does have a statutory defence if it can prove that it took such steps as were reasonably practicable to prevent the harassment. It's therefore vital that an employer has in place effective policies and procedures to combat workplace bullying.
Under the sex discrimination legislation, an employer is also potentially liable if an individual is harassed by a third party, such as a customer or a client, in the course of employment. Liability arises where the employer knows that the employee has been subjected to such harassment on at least two other occasions, but has failed to take steps to prevent it.
The Equality Act 2010 will extend an employer's potential liability for harassment by third parties to nearly all the protected characteristics, therefore considerably widening the scope of an employer's liability. Compensation for successful complaints of discrimination is potentially unlimited.
The Protection from Harassment Act 1997
Following a 2006 House of Lords' ruling in the case of Majrowski v Guy's and St Thomas' NHS Trust, employees are now able to seek redress for workplace bullying under the Protection from Harassment Act 1997 (PHA). In Veakins v Kier Islington Ltd the Court of Appeal said that in PHA claims the primary focus should be on whether the conduct in question was 'oppressive and unacceptable', although it should also be of the type that 'would sustain criminal liability'.
If the bullying falls into this category, bringing a claim under the PHA has significant advantages for employees, not least a six-year period for bringing a claim (compared to three years for personal injury claims and three months for the majority of employment tribunal claims). There is also no requirement for the employee to show that the damage they have suffered was reasonably foreseeable or that the damage amounts to a psychiatric injury. Damages are not limited and can include compensation for anxiety suffered and financial loss.
Constructing a bullying policy
The keystone of any action to manage workplace bullying is a comprehensive, well-communicated and enforced anti-bullying and harassment policy. A good policy should contain:
- A statement of commitment (endorsed by those at the top of the organisation) to promote dignity at work and to eradicate workplace bullying and harassment.
- A commitment to adopt a zero-tolerance approach to all unacceptable behaviour.
- Examples of behaviour that constitute harassment and bullying, and other unacceptable behaviour.
- A clear statement that harassment and bullying are disciplinary offences.
- Clear, concise procedures for resolving conflicts and complaints, including both informal and formal systems.
- An assurance that complaints will be taken seriously with clear guidelines for confidentiality.
The importance of employee training
An effective anti-bullying policy should also be backed up by training, both for managers and for staff generally.
Managers should receive training in how to prevent and deal with bullying and harassment in the workplace. The training should include an overview of the relevant law and the measures needed to deal fairly and effectively with instances of bullying or harassment should they occur.
General staff training should make it clear that bullying at work will not be tolerated and that instances of bullying behaviour will potentially be viewed as misconduct leading to disciplinary action. Staff should be informed that they must treat their colleagues with dignity and respect and refrain from any behaviour that might cause offence. Employees should also be briefed on the types of conduct and speech that might cause offence to others.
The need to tackle bullying head on
It's easy to see how managing workplace bullying is such a sensitive and complex issue. However, employers must tackle it head-on. An effective anti-bullying strategy will give employers the best chance of successfully defending any claims.
Employers who bury their heads in the sand are risking a negative impact on their workforce, their reputation and their pockets.