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BULLYING AT WORK

The law:

Employment Rights Act 1996, ss.43A-43L; s.44; s.47B; s.95(1)(c); s.100(1)(c); s.100(1)(d); s.103A; s.105(6A); s.123(1); ss.128(1)(b); s.129(1);
Health and Safety at Work etc Act 1974, s.2; s.3; s.7; s.33;
Public Order Act 1986, s.4A;
Criminal Justice and Public Order Act 1994, s.154;
Protection from Harassment Act 1997, s.1(1)(2); s.2(1); s.3(1)(2); s.7(2)(3)(4);
Public Interest Disclosure Act 1998;
Employment Act 2002 (Dispute Resolution) Regulations 2004; and
the anti-discrimination Acts and Regulations which prohibit unlawful discrimination on the grounds of race, sex (i.e. gender), sexual orientation, disability, religion and the like.
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Leading case in employment law on employers' potential vicarious liability for breaches of statutory or common law duties committed by employees during the course of their employment: -
Majrowski v Guy's and St. Thomas's NHS Trust (2005) EWCA, Civ 251, Court of Appeal. This case confirms that a claimant/employee, who has been seriously bullied at work, can take action under the Protection from Harassment Act 1997 against a fellow employee who has bullied her or him as well as against their employer and claim damages from both of them, notably from the employer who may be best able to pay a sum of money in recompense. Damages may include compensation for anxiety and/or loss of employment.

General points: -

* employers have a duty under the Health and Safety at Work etc Act 1974 to ensure the
health, safety and welfare of their employees;

* serious bullying may give rise to criminal liability against the perpetrator if the 'course of
conduct' (i.e. behaviour that must consists of more than a single incident of harassment),
amounts to a breach of the Protection from Harassment Act 1997;

* in Majrowski, the Court of Appeal held that the supervising employee who allegedly
harassed the claimant/employee could be liable at common law as could the harasser's
employer and therefore both could be liable to pay damages in civil proceedings for 'any
anxiety caused by the harassment' and 'any financial loss resulting from the harassment;'

* in other words, the ruling in Majrowski (2005) means that an employee who has been
bullied by another employee can make a civil common-law claim for damages for 'any
anxiety caused by the harassment' from the employee who harassed her or him as well as
from the employer if the claimant can show that the employer was vicariously liable for the
other employee's wrongful conduct that was a breach of statutory duty;

* the Court also held that an harasser's employer can be held vicariously liable for its
employee's unauthorised criminal conduct by way of civil proceedings in a claim for
damages even though the employer cannot be held criminally liable for the same breach;

* an employee who is bullied at work by a supervising employee or the employer itself has
the option, if the bullying amounts to a fundamental breach of an implied term of the
contract, to terminate the contract and, if employed for less than one year, make a claim
against the employer for damages for constructive dismissal or, if employed for more than
one year, make a claim for compensation for constructive unfair dismissal.
The first legal step - inform the employer in writing of the grievance: -
an employee who is bullied at work has a number of remedies available to her or him. The first legal step that an employee must take, whether he or she wants to or not, is to inform the employer in writing that he or she is being bullied. Since the 01 October 2004, an employee who fails to state a grievance to her or his employer under the Employment Act 2002 (Dispute Resolution) Regulations 2004 will be disqualified from making a claim to an employment tribunal if he or she is subsequently sacked or has to resign because of the bullying: see Statutory Dismissal and Disciplinary Procedures and Statutory Grievance Procedures

In addition, note the Health and Safety at Work etc Act 1974: -
section 2 of the Act states that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. This would clearly cover an employer's duty to prevent and/or remedy the bullying of employees by other employees, particularly bullying by supervising employees.

Public Interest Disclosure Act 1998: -
an employee raising a grievance in good faith about a breach of the Health and Safety at Work etc Act 1974 or/and a breach of the employment contract in that the employer or 'a person has failed, is failing, or is likely to fail to comply with a legal obligation' may, if subjected to a detriment or dismissed thereafter for the reason that he or she made what may be a public interest disclosure under the Act, have a right by virtue of the Employment Rights Act 1996: - not to suffer a detriment (s.47A); not to be dismissed (s.103A); not to be selected for redundancy (s.105(6A)); and interim relief is available (ss.128(1)(b), 129(1)). See: ss.43A-43L ERA 1996. Age limit, length of service and the compensation limit do not apply. See: Parkins v Sodexho Ltd (2001) EAT 22.06.01.

Right not to suffer a detriment in health and safety cases: s.44, Employment Rights Act 1996: -
this section states that an employee is entitled not to be subjected to any detriment (i.e. a disadvantage short of dismissal) by an act or a failure to act by his employer regarding a health and safety matter he or she brought to the employer's attention by reasonable means or, alternatively, acted upon whether as a safety representative or not. The Court of Appeal held that s.44 protects employees from being subjected to a detriment (after making a complaint regarding a health and safety matter) only while employment continues: Fadipe v Reed Nursing Personnel (2001) EWCA 1885, CA.

Examples: -
suppose an employee complained to the employer about being bullied and was subsequently dismissed for making the complaint. The remedy available to such an employee would be to make a claim for compensation to an employment tribunal for automatic unfair dismissal. Such a dismissal would be for a health and safety reason. Section 100(1)(c) of the Employment Rights Act 1996 states that it is automatically unfair to dismiss an employee for the reason that the employee drew to the employer's attention, by reasonable means, to circumstances (such as bullying) which the employee believed were harmful or potentially harmful to her or his health and safety and there were no safety representative or safety committee in the workplace through which the employee could have raised her or his concerns. An employee can also claim automatic unfair dismissal (s.100(1)(d), ERA 1996) if the employee was dismissed because he left the workplace because of the danger of being injured due to the behaviour of another employee who was being abusive and aggressive towards him: Harvest Press Ltd v McCaffrey (1999) IRLR 778, EAT. No minimum period of employment is required and the compensatory award maximum limit of £56,800 (for the year from 01 February 2005) does not apply. An employee who has been dismissed for a health and safety reason may apply under the Public Interest Disclosure Act 1998 for interim relief within seven days following the 'effective date of termination' of the contract of employment. This is a valuable remedy but quick advice and quick action is needed to gain it.
Burden of proof: -
the burden of proving that a dismissal was for a health and safety reason is on the employee: Tedeschi v Hosiden Besson Ltd, EAT 959/95.

Duty owed to non-employees: -
there is also a duty upon employers to take steps to prevent and remedy instances where they or their employees bully the employees of other employers or bully people who come into contact, for whatever reason, with any of the employers' employees who are carrying out their duties while in their employers' employ. Under s.3 of the Health and Safety at Work etc Act 1974, there is a duty placed upon every employer and every self-employed person to conduct his undertaking in such a way so as to ensure, so far as is reasonably practicable, that persons who are not his employees, but who may be affected thereby, are not exposed to risks to their health and safety.

Duties of employees at work: -
in the case of employees who work together, there is a similar duty, for example, not to bully one another. Section 7 of the Health and Safety at Work etc Act 1974 states that every employee is under a duty while at work:
(a) to take reasonable care for the health and safety of himself and of others who may be
affected by his acts or omissions at work;
(b) as regards any duty imposed on his employer or any other person, to co-operate with him
so far as it is necessary to enable that duty to be performed or complied with.

Penalties: -
by virtue of s.33 of the Health and Safety at Work etc Act 1974, a person or body corporate (e.g. a Company) may be charged with and convicted of a criminal offence under the Act. Crown bodies (excluding health authorities) have the same obligations under the Act as other employers but they cannot be prosecuted because of a rule of law that states that the Queen, as head of Crown bodies and the embodiment of the Crown, cannot be prosecuted in her own courts.

Failure to act and prosecute under the Health and Safety at Work etc Act 1974: -
although the Health and Safety at Work etc Act 1974 provides the means to investigate, prevent and prosecute those who conduct their businesses in a dangerous or reckless manner, there is, on the part of enforcement officers, who are usually environmental health officers employed by local authorities, an inertia to act and a reluctance to prosecute. Only a small number of cases are brought and heard in the courts each year. But the inadequate penalties levied tend to bring the law into disrepute and contempt. It has been the long-standing policy of UK governments to give businesses free reign to maximise profits at the expense of health and safety. Except for the most blatant abuses and high profile incidences which have political repercussions, the authorities generally turn a disinterested or blind eye to most breaches of health and safety which each year lead to serious injuries and deaths of working people. Notably, only the authorities can bring proceedings and the Act does not give rise to questions of civil liability and does not confer a right of action in any civil proceedings.

Majrowski v Guy's and St. Thomas's NHS Trust (2005) EWCA Civ 251, this case was about whether an employer can be vicariously liable for a breach of statutory duty by one of its employee's under the Protection from Harassment Act 1997: -
in Majrowski (2005), the Court of Appeal reviewed the relevant statute law and the case-law authorities when it considered an appeal by an employee who had brought a claim under the 1997 Act against his employer alleging harassment at work. As a result of the ruling by the Court of Appeal, an employee who has suffered bullying at work may well find a better and more effective remedy by pursuing a civil action under the Protection from Harassment Act 1997 rather than attempt the rather hopeless task of persuading the authorities to take action for a breach of health and safety against her or his employer under the Health and Safety at Work etc Act 1974. In addition to civil liability, criminal liability can also be applied against the perpetrator for breaches of the provisions of the Protection from Harassment Act 1997.

Nature of the claim: -
in Majrowski (2005), the claimant argued that his manager had breached a statutory duty placed upon her by the Act; and that the employer should be held vicariously liable for that breach. The allegations by M were that, while employed by Guy's and St. Thomas's NHS Trust, he was bullied, intimidated and harassed by F, his departmental manager. M issued proceedings against the NHS Trust under the Protection from Harassment Act 1997, the claim being that it was vicariously liable for F's breach of the provisions of the Act.

Issues for the Court: -
in deciding whether the employee's claim should proceed to trial, the Court of Appeal had to consider two important issues regarding vicarious liability:
(1) firstly, the general issue of whether an employer can be vicariously liable for an
employee's breach of statutory duty;
(2) secondly, the specific issue of whether an employer can be vicariously liable for an
employee's breach of statutory duty under the Protection from Harassment Act 1997.

Note: the term 'vicarious liability' refers to a rule of law that states that an employer is liable for the torts (i.e. wrongs) of its employees committed 'in the course of their employment.' The basis for this rule is that the employer is responsible for selecting and supervising its employees and, therefore, it could be said that a failure on the part of an employee to carry out her or his duties correctly shows a failure by the employer to recruit and/or supervise correctly. Many employers seek to minimise their costs and maximise their profits by reducing the costs of training and supervision to the lowest level possible based on their particular commercial judgement. When things go wrong, it is arguably employers who should accept responsibility and it is they, rather than the employees who have committed the acts or omissions, who have the financial resources to pay compensation to those who have suffered losses. For a claimant to recover compensation from the employer it is necessary for the claimant to establish that the employer is vicariously liable. To do that it is also necessary to show that the employee who committed the torts was acting in the course of her or his employment. The case of Lister & ors v Hesley Hall Ltd (2001) establishes when 'someone is acting in the course of their employment' and clarifies what a claimant needs to demonstrate in order to establish that an employer is vicariously liable for the employee's torts.

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