According to reviews of Tony Blair’s new memoirs, A Journey, he has complained that he felt bullied by Gordon Brown. Earlier this year, it was also reported that Mr Brown was bullying members of his staff, some of whom had allegedly called an anti-bullying helpline[1].
The National Bullying Helpline asserts that one in four people are currently experiencing bullying in the workplace[2]. It therefore appears that bullying is an endemic problem, whether in Whitehall or your more run-of-the mill working environment.
It is important that employers seek to tackle bullying in the workplace, particularly given its financial, legal and potentially reputational implications. Workplace bullying adversely affects productivity and staff morale. It has been estimated that it costs businesses in the UK in the region of £2 bn per year[3], having regard to decreased staff performance, staff absences and recruitment costs due to increased staff turnover.
Workplace bullying can also give rise to a host of legal claims for which employers can be held liable, such as:
1. Constructive dismissal: Where an employee is being bullied and the employer fails to take appropriate action once aware of the situation, the employee may resign and claim constructive dismissal on the basis that there has been a breach of the fundamental implied term of mutual trust and confidence, which exists in every employment contract. Such an employee may claim wrongful dismissal, seeking their contractual entitlements (for instance, notice pay and accrued holiday pay), as well as unfair dismissal. Compensation for unfair dismissal is currently capped at £65,300.
Further, it is an implied term of every employment contract that an employer will take reasonable steps to ensure the health and safety of its employees at work, so a bullied employee could also resign and potentially bring constructive wrongful and unfair dismissal claims if this implied term is breached.
2. Personal injury: A bullied employee who suffers physical or psychiatric damage, may be able to pursue a personal injury claim against the employer, depending on the nature and severity of the bullying and whether the employee’s injuries were reasonably foreseeable to the employer.
3. Protection from Harassment Act 1997: The Protection from Harassment Act 1997 prohibits a person from engaging in a course of conduct that amounts to harassment and which a person knows or ought to know amounts to harassment. In Majrowski v Guys & St Thomas’ NHS Trust 2006[4], the House of Lords unanimously upheld the Court of Appeal’s decision that an employer can be vicariously liable under this Act for harassment committed by an employee in the course of employment. Harassment is a criminal offence, but a victim may also pursue damages and/or an injunction in the civil courts.
4. Whistleblowing: Where an employee raises a genuine concern about bullying (whether on his or her own behalf or others) in good faith and to an appropriate person, this could amount to a protected disclosure for the purposes of the Public Interest Disclosure Act 1998. This would entitle the employee to pursue a claim seeking compensation for any detrimental treatment they have been subject to as a result of making the protected disclosure. If the employee is dismissed for having blown the whistle, the dismissal will be automatically unfair and the statutory cap on compensation for unfair dismissal will not apply.[5]
5. Discrimination: It is unlawful under English Law to discriminate and harass on any of the protected grounds under the Equality Act 2010. Consequently, if an employee can show that they are being bullied or harassed because they have a protected characteristic, they could submit a discrimination claim. The Equality Act has extended protection from harassment to include harassment by third parties such as clients, service users or contractors employed by the organisation. If an employee has complained of harassment on at least two occasions, your organisation may be vicariously liable for that harassment unless you can demonstrate that you have taken reasonable steps to prevent it. As with whistleblowing claims, there is no cap on the compensation an employee can receive if their discrimination claim is successful. Further, they could be awarded an injury to feelings award, which usually ranges from £500 to £30,000.
Given the legal and financial implications of workplace bullying, employers can ill afford not to address complaints of bullying. Employers must review their policies to ensure they are sufficiently robust and make clear that bullying and harassment will not be tolerated. Further, employers must ensure that complaints of bullying are investigated and that they take appropriate disciplinary action against employees found to be bullying others (and where appropriate provide training), to help minimise the risk of being held vicariously liable for such actions. Let’s hope David Cameron has taken note!
[1] ‘Nowhere to hide – bullying is back’, in The People Bulletin, 3rd March 2010
[2] www.nationalbullyinghelpline.co.uk
[3] www.bullyonline.org/workbully/costs.htm
[4] http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060712/majro.pdf
[5] See also 'You can't do that!' by Judith Rhule in The People Bulletin, 19 May 2010