I am the Company Secretary for a small local chain of restaurants and, unfortunately, have responsibility for HR matters. One of our Restaurant Managers has informally complained to me that he is being bullied by the Head Chef in the same restaurant. The chef is a talented but volatile and highly vocal character and, to be fair, he works in a high pressure environment. The Manager is a more sensitive soul and says that he feels constantly and unfairly criticised by the chef, who shouts at him and publicly calls him “an incompetent ***** ”.

Ironically, their competitive relationship makes for a very tight ship and the restaurant is our most profitable, so I’d rather not meddle but am I at risk if I do nothing? There doesn’t seem to be any element of discrimination involved (they are both white, middle-aged married men) – they just don’t get on.

Yours

Lee Vem-Tuit

 

Dear Lee

Well there’s plenty of food for thought there, isn’t there (sorry – !). Despite your comments on the effects of healthy competition, workplace bullying is unlikely to improve productivity or morale. It can be a pernicious problem and can have a much wider negative impact than on those immediately involved.

Obviously, you will need to look further into these allegations and hear the Chef’s side of the story, but assuming that this bullying is taking place, there also is a real legal exposure. You’re right that the presence or absence of any discrimination is the first concern, but even without any element of discrimination, workplace bullying or harassment can give rise to a number of claims.

Constructive Unfair Dismissal

The most obvious risk is that the Manager will leave. Aside from the commercial impact of this loss, he may assert that he has been constructively dismissed by virtue of your failure to protect him from this harassment. There is not really any such thing as an “informal complaint” for these purposes and now that you are aware of the problem, failure to address it may well amount to a breach of the duty of trust and confidence implied into every contract of employment. Breach of this duty will always amount to a fundamental breach of contract and, if the employee resigns, will be a constructive dismissal. This will give the Manager the right to be paid for his notice period and, if he has a year of service or more, will be an automatically unfair dismissal for which he can claim compensation.

Protection from Harassment Act 1997

Aside from the unfair dismissal claim, there is a risk that you as the employer could be vicariously liable if the chef has been guilty of harassment contrary to the Protection from Harassment Act 1997 (the “Act”). This legislation is not focussed on the employment relationship. It was originally intended to be anti-stalking legislation, but in fact prohibits a very broad range of behaviour, namely any course of conduct which alarms a person or causes them distress and which the perpetrator knows or ought to know amounts to harassment.

In 2005, the Court of Appeal decided that if an individual harasses another in the course of his employment, his employer potentially can be liable under the Act (whether or not the victim of the harassment is also your employee). This is an important extension to an employers liability for workplace bullying because, unlike for constructive unfair dismissal, the employee can sue while still in post AND there’s no limit on the amount recoverable. Moreover, the employee can recover damages simply for the anxiety they have suffered without having to show that they have actually suffered personal injury or financial loss – though these too will be recoverable. The case in question is going to the House of Lords where it will be argued that employers should not be responsible for claims under this legislation. However, most commentators think it’s unlikely that a blanket exemption for employers will be the outcome.

Stress Issues

Exposure to workplace bullying can be a stressful and alienating experience which can give rise to depression or other serious health consequences. Aside from managing the business effects of employees’ ill-health, in some circumstances the employee can claim against his employer for the consequences of stress, depending on the precise scenario. I would need a bit more information to form a clear view but you should certainly be aware that, if the Manager becomes ill, you will be at risk. Related to this is the obligation to consider exposure to stress in the context of health and safety risk assessments and the Health and Safety Executive have published Management Standards on how to deal with this. Failure to comply with the Management Standards will be relevant to any claim for personal injury. The slightly better news, however, is that claims for personal injury should be covered by your Employer’s Compulsory Liability Insurance: check your policy.

If the Manager does become ill as a consequence of bullying, obligations under Disability Discrimination legislation may also be triggered. In particular, you may be obliged to make reasonable adjustments to accommodate the consequences of any disability that arises.

So, Lee, it would be wise to intervene in this situation. A competitive edge in employee relations is one thing but downright abuse is quite another. If you act now, some form of mediation or counselling process may smooth the edges in the personal dynamic sufficiently for the situation to be salvaged. If you do nothing, this situation can only be a timebomb waiting to explode.

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