Strategies to Beat Bullying at Work
By admin
Issued on behalf of Darwin Gray Solicitors
Bullying and harassment in the workplace is a hot topic in employment law, not least because of the scale of the problem.
In March 2007, the DTI reported that 2.1 million British employees had personally experienced unfair treatment, bullying or sexual harassment at work in the last two years. It can happen at any level in an organisation from the boardroom down, and there have even be instances of upward bullying, when employees bully a line manager.
As well as scale, the other aspect of the problem that grabs media attention is the massive pay-outs, such as the £800,000 to a secretary by Deutsche Bank last year.
These two elements together tend to engender panic among employers. Of course, there is no need to panic, but a sensible, consistent approach to problems of alleged bullying is vital.
Being able to identify bullying and harassment is half the battle. What may look like bullying to one person might well be considered firm management by another. ACAS guidelines on the subject suggest that, “For practical purposes, those making a complaint usually define what they mean by bullying or harassment.”
However, there are generally accepted definitions as well.
Bullying: Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.
Bullying differs from harassment which hinges on a personal characteristic of the person being harassed so, for example, you may be harassed because you are gay, or black or disabled, or pregnant.
Harassment: Unwanted conduct affecting the dignity of men and women in the workplace.
It may be related to age, sex, race, disability, religion, nationality or any other personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient.
There are obvious similarities between these two issues but while a robust managerial position needs to be taken in each scenario the person aggrieved may well have different legal remedies.
If the bullying causes the employee illness, then the employee could lodge a personal injury claim. If the employee is forced to finish work as a result of the bullying, then they may have an unfair constructive dismissal claim and a breach of contract claim.
Someone who has been harassed may well have a claim under anti-discrimination legislation, as each strand of the law in this area contains penalties for harassment. The danger here for employers is that damages are unlimited.
Harassment can also be harnessed under the Protection from Harassment Act. One of the main risks to employers from this type of claim is that an individual can bring a claim up to six years from the act of harassment.
However, employers are not left defenceless in the face of such claims. If they can show they have taken reasonably practicable steps to stamp out bullying and harassment in the workplace, this is likely to form the basis of a defence. Consequently, it is particularly important that employers think of strategies to achieve this, since otherwise they could be held vicariously liable for the harassment of an employee.
ACAS, the Advisory, Conciliation and Arbitration Service, recommends several strategies to employers. Some of these are:
• A statement of commitment from senior management
• Ensuring appropriate training for managers
• Ensuring confidentiality for any complainant
• Considering how the policy is to be implemented, reviewed and monitored
Cases of bullying and harassment are coming before courts and employment tribunals the whole time. The most recent is that of McAdie v Royal Bank of Scotland that was heard in the Court of Appeal on 31 July 2007. In this case, the court found that a manager had bullied Mrs McAdie. She had then gone off sick and was subsequently dismissed because she was unable to do her job.
Nevertheless, the dismissal, when it did happen, was not beyond the ‘range of reasonable responses’ even though it had been triggered by bullying. The bank had tried to coax Mrs McAdie to return to work, but she was adamant that she wanted to be dismissed.
The Court suggested that, “an employer might be expected to ‘go the extra mile’ to attempt to avoid dismissal, but as long as the employer could show that the dismissal was in the ‘range of reasonable responses’ then the employer would not have dismissed the employee unfairly, even though the initial bullying had happened in the workplace.
