Bullying and Harassment – Fact Sheet
In this we try to clarify the confusion expressed by many clients surrounding bullying
and harassment issues. It is often the case that because organisations nowadays
tend to have a Bullying & Harassment Policy, there can be an assumption that the
policy follows a particular piece of legislation. We hope this fact sheet will clear up
some of the confusion.
- For any employee to bring a claim to the Employment Tribunal there has to be legislation under which to bring the claim.
- There is no legislation that describes anti-bullying, and the actual harassment
legislation that does exist was originally written to protect people from intrusion
from the paparazzi, and is therefore a tort (wrong-doing), and would have to be
brought in the County Court as opposed to the Employment Tribunal.
However, the information above does not therefore mean that claims regarding
harassment cannot be brought in the Employment Tribunal. There is a raft of
legislation under which claims can be brought where any one of the discrimination
laws can be cited:-
Generally these acts talk about violating dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Bullying on the other hand, is not defined by any statute and there is no specific
case law guidance on what the concept covers. (Guidance available from ACAS).
- The key difference between bullying and harassment is that for conduct to
amount to harassment it has to be done for one of the prohibited reasons (i.e. the victim’s race, sex, etc), whereas bullying can be indiscriminate.
Therefore, what amounts to bullying may not necessarily also amount to
harassment, so the fact that an employee has been subject to bullying, will not
automatically give him or her a legal remedy. However, a bullied employee could
possibly claim unfair constructive dismissal under the Employment Rights Act,
(1996). Of course, there is also the implied contractual term of mutual trust and
confidence that also needs to be considered, because this could add a claim for
breach of contract to any possible claim. The employee would need to satisfy a
Tribunal that the conduct was sufficiently serious to destroy or seriously damage
the relationship of trust and that the resignation was as a direct result.
- Recent case law goes well beyond simply preventing employers from subjecting
employees to offensive, intimidating, humiliating, demeaning or inappropriate
conduct, and can require employers to investigate complaints of bullying
thoroughly, take steps to resolve workplace conflict, and ensure that strong
management does not cross the line into humiliating or offensive treatment.
- It is also worthy of note that an employee who suffers any physical or psychiatric
injury as a result of workplace bullying, could bring a claim of negligence and/or a
personal injury claim. (There are many schools of thought on this; for example
that the employer may not be liable unless he knew or ought to have known that
this conduct was taking place, and fails to take reasonable steps to prevent it).
This route is much more challenging for the employee to circumvent, and could
potentially increase the bill for costs, but is potentially worth more in damages,
because the Tribunal has a £60,600 cap on its ability to make an award for unfair
constructive dismissal. The Tribunal is free to lodge an ET1 (Claim Form), and in
theory at least, the claimant can represent themselves on the day. (Although in
practise, a good number of claimants do not).
- If any employee proves their case, then the rule of vicarious liability will apply and
the employer will be liable to pay any award unless he is able to prove he took
reasonable steps to prevent the acts in question from occurring, and even then
the employer may not escape liability; especially since the employee could bring a
claim against the employer and the employee committing the acts as joint
respondents in the claim. (Reasonable steps may include full training to everyone
in a management role and a Bullying & Harassment Policy that has a proven
method of communication to all staff – it is not really helpful that the employer
places a policy on the Intranet, not tell the employees it is there, and then try to
use this as a defence.
- Bear in mind that under discrimination laws a claimant has protection even preemployment,
but for other claims, would have to be in employment for one year
before being able to bring a claim in the Tribunal.
- Under the Dispute Resolution Procedures, a claimant has to have raised a
grievance with the employer before taking the matter to Tribunal. However, there
has been talk about these procedures being reviewed later this year, so these
rules may change.
We hope you have found this Fact Sheet helpful. People Vision have Employment
Law specialists who can undertake all kinds of training, risk assessment, policy
writing, mediation and investigative work in connection with any bullying and
harassment issues.
Call us on 0845 4599710 or email info@pvhr.com for more information.
