Employers will need to be on their guard against signs of bullying in the workplace after the recent cases of Helen Green v Deutsche Bank and William Majrowski v Guys and St Thomas’s NHS Trust. Both these employees brought different types of claims as a result of bullying.
The following claims may arise if a bullying environment is allowed to persist:
Protection from Harassment Act 1997. In the case of Majrowski, the Law Lords upheld the Court of Appeal ruling that employers could be vicariously liable under this Act for harassment suffered by workers in the course of their employment. Under the Protection of Harassment Act, an individual can bring a claim if they have been subjected to a course of conduct (more than one incident) which amounts to harassment of another and which the harasser knows or ought to know amounts to harassment. The second limb of bringing a harassment claim is a part subjective, part objective test; it would amount to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment. Importantly, if an employee brings a claim under the Protection from Harassment Act, he or she would not need to show that they have been discriminated against (treated less favourably than another individual on the grounds of their race, sex, religion, disability or sexual orientation or any other prohibited ground). Even if a manager treated everyone in the same way, an individual could still bring a claim.
Personal Injury Claim. Helen Green brought a personal injury claim against Deutsche Bank on the basis that she had suffered psychiatric injury as a result of the bullying and harassment she had suffered. An employer’s duty of care to his employee extends to the employee’s psychiatric wellbeing. In line with the case of Hatton v Sutherland, in order to succeed in a personal injury claim for psychiatric illness, the individual will need to show that it was reasonably foreseeable that they would suffer this illness. In the Green case, she had previously suffered from a psychiatric illness. Therefore, if an employee is suffering from a stress‑induced mental illness as a result of bullying at work (of which the employer is aware) and if the employer fails to take steps to stop the bullying, the employer could be held to be in breach of the duty of care. Such claims can be costly: Helen Green was successful in her claim for personal injury and was awarded £800,000 in compensation.
Harassment under discrimination legislation: All the equality legislation now contains a discrete head of claim for harassment. When age discrimination is implemented in October 2006, it will also contain a separate head of claim for harassment on the grounds of someone’s age. Harassment is defined within the equality legislation as the unwanted conduct on the basis of a prohibited ground (sex, race, religion or belief, sexual orientation or disability) which has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive working environment. Examples of harassing behaviour could involve offensive jokes/obscene pictures on a pin board.
Discrimination. An individual can also bring a claim for less favourable treatment on one of the prohibited grounds: religion or belief, race, sex, disability, sexual orientation. In order to succeed in a claim for discrimination (as opposed to a Protection from Harassment claim) the individual will have to identify that they have been treated less favourably than their comparator. Therefore, if a manager were to bully everybody in an office, an individual could not bring a claim for discrimination. This would be rather bad management and a claim would need to be brought under the Protection from Harassment Act. However, if a woman was targeted in particular and comments were made regularly about her appearance or dress, she may have a claim for sex discrimination. An individual would also be covered if they were victimised (i.e. being laughed at, excluded or isolated from the working environment) for bringing a complaint of discrimination.
Whistleblowing: If an employee raises a complaints about a bullying environment, this may be a breach of a legal duty (for example the Sex Discrimination Act 1975) under the Public Interest Disclosure Act 1998. Provided that such a complaint is made to the correct person, the employee will have made a protected disclosure. If the individual were subsequently bullied or harassed (or subjected to some other detriment) as a result of raising such a complaint, they could bring a claim for compensation under the Public Interest Disclosure Act.
Constructive Dismissal: If an employee feels that their working position is no longer tenable because of bullying and harassment in the workplace, they may resign and claim constructive dismissal on the basis that there has been a breach of trust and confidence between the employer and employee. Implied into every contract of employment is a term of mutual trust and confidence, and maintenance of an appropriate and suitable working environment would be implicit in this. If bullying is allowed to continue unchecked by management, an individual may be justified in resigning, claiming unfair constructive dismissal and breach of contract. Compensation for an unfair dismissal claim is currently capped at £58,400 plus a small basic award. An individual would not need to show that they have been suffering discrimination to succeed in a constructive dismissal claim; general bullying and harassment by an abusive manager may be sufficient if serious enough.
All of these claims can be brought individually or simultaneously depending on the specific facts.
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