Out with bullying

Bullying can have disastrous consequences, warns Jonathan Chamberlain

Bullying, according to the Andrea Adams Trust, is 'a gradual wearing down process that makes individuals feel demeaned and inadequate' and involves 'unwanted humiliating offensive behaviour'¦ abuse of power or position'. ACAS defines it as 'offensive, intimidating, malicious or insulting behaviour and abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient'.

In employment law terms, 'harassment' is also relevant; ACAS defines it as 'unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, sexual orientation, nationality or any personal characteristic of the individual and may be persistent or an isolated incident'.

Legal risks

There is no specific legislation that outlaws workplace bullying. However, the law prohibits harassment in certain specific areas and enables employees to bring claims under various guises for both bullying and harassment:

• Discrimination: harassment on grounds of sex, race, ethnic or national origin, disability, sexual orientation, religion or belief and age is unlawful.
• Unfair dismissal: a harassed or bullied employee with a year's service may bring a constructive unfair dismissal claim following a resignation for breach of the implied duty of trust and confidence or the employer's duty to provide safe working conditions.
• Personal injury: an employer may be able to bring a claim for breach of the employer's duty of care that results in a personal injury. The employee must show there has been a breach and that damage was reasonably foreseeable.
• Breach of statutory duty: an employer is under a duty to provide a safe place of work under the Health and Safety at Work Act 1974.
• Protection from harassment: the Protection from Harassment Act 1997 (the Act) can be used to good effect in providing protection. In Green v DB Group Services (UK) Ltd [2006] EWHC 1898, Helen Green recovered £800,000 from Deutsche Bank following stress and a nervous breakdown allegedly caused by bullying and harassment by colleagues. The bank was held to be in breach of its duty of care and vicariously liable for the bullying.

Bringing a claim

Discrimination and constructive unfair dismissal are claims brought in employment tribunals, whereas claims for personal injury (generally) and under the Protection from Harassment Act are brought in the High Court.

Advantages of employment tribunal

• No costs incurred in issuing claim.
• Generally faster to hearing.
• Generally costs are not awarded and both parties bear their own costs.
• Injury to feeling awards are available in discrimination claims over and above actual loss that is uncapped.
• Personal injury claims in discrimination cases can be considered by the employment tribunal and there is no requirement to show that the injury caused was reasonably foreseeable.

Disadvantages of tribunal claims

• For the employee to comply with the Employment Act 2002 (Dispute Resolution) Regulations 2004, a grievance must be raised prior to issuing proceedings.
• Generally a three-month time limit for issuing proceedings.
• No legal aid available.

Advantages of harassment claims

In contrast to a breach of contract claim

(a) No need to prove that the anxiety or personal injury suffered was foreseeable, enabling a claimant to bypass the test set down in Sutherland v Hatton [2002] IRLR 263; Hartman v South East Mental Health Community Care NHS Trust.

(b) Employers cannot rely on the 'we took all reasonable steps' type of defence.Hatton and Vahidi v Fairstead House School Trust Ltd

In contrast to a personal injury claim

(a) Only need prove that they have experienced 'anxiety' as a result of the harassment
(s 3(2) of the Act). This is a significantly lower hurdle than establishing 'a recognisable psychiatric condition' under common law.

(b) Six years to bring a claim, rather than the ordinary three-year limitation period for personal injury (s 11(1A), Limitation Act 1980).

In contrast to claims under discrimination legislation

(a) There is no need to show the conduct was discriminatory.

(b) Employers cannot rely on the statutory reasonable steps defence available under discrimination legislation;

(c) Six years to bring a claim, rather than the ordinary three-month limitation period for discrimination claims.

Claims can only be brought in the civil courts, rather than the employment tribunals:

(a) Unlike employment tribunals, costs are usually recoverable

(b) Legal aid is available

What can employers do to limit potential liability?

The judgment in Green makes it clear that the employer has a positive duty to take necessary steps to root out bullies and bullying. Employers should:

• Introduce a dignity at work policy, review existing ones and train employees on their application.
• Focus on positive behaviours.
• Monitor the working environment.
• Manage proactively situations involving the risk of bullying and harassment claims.
• Deal with bullying head-on if it occurs.