Bullying and harassment

Employers have a duty to provide a safe and healthy working environment. This includes protection from bullying and harassment.

Common law rights to protection against bullying

Under the common law, employers may be liable for psychiatric or psychological damage caused by bullying or harassment at work. The discussion above on psychiatric injury caused by work-related stress applies equally here.

Protection from harassment under the Equality Act 2010

Workers may have a claim for harassment, where the behaviour is as a result of one of the characteristics protected by the Equality Act 2010 (EA 2010), namely sex, pregnancy and maternity, sexual orientation, gender reassignment, disability, race, religion or belief, age, marriage and civil partnership.

Harassment by third parties

Until its repeal on 1 October 2013, under the Enterprise and Regulatory Reform Act 2013, section 40 of the Equality Act 2010 contained specific provisions to protect workers from harassment by third parties such as suppliers and customers. The legislation was aimed, in particular, at protecting front-line staff such as care workers, teachers and nurses from abuse, and its repeal was strongly resisted by unions and other equality campaigners. Despite the repeal, there may be other ways of enforcing a right to protection against third party harassment, such as by arguing that the employer’s failure to protect the worker is a breach of the general anti-harassment duty under section 26 of the EA 10. For more information see LRD’s annual employment law guide Law at Work.

In an extreme case, a worker may be able to bring a case under the Protection from Harassment Act 1997 (see page 192).

Constructive dismissal

Workers suffer bullying and harassment for all kinds of reasons, often unrelated to the reasons protected by the Equality Act 2010. The law is particularly inadequate when it comes to protecting these workers. Theoretically, direct employees have the possibility of resigning and bringing a claim for constructive dismissal based on a fundamental breach of the employer’s general duty of trust and confidence, and of the employer’s duty to take reasonable care of an individual’s health and safety. However, resignation is a dramatic step which should only ever be approached as a very last resort.

Constructive dismissal claims are very difficult to win, not least because they usually involve fact-based disputes about who said what to whom. Supportive colleagues may well not be prepared to act as witnesses because of the threat to their own jobs. As well as the outcome being highly uncertain, the remedy is unsatisfactory.

Compensation is wholly inadequate, limited to a claim for net lost earnings. Unlike claims of discrimination, a claim for constructive unfair dismissal does not entitle an employee to compensation for injury to feelings or psychiatric injury, no matter how severe the bullying has been. Re-engagement or reinstatement is highly unlikely, especially in cases involving interpersonal conflict, unless the employer is large enough for redeployment to be a practical possibility. In any event, tribunal claims for unfair dismissal must be brought quickly — within three months of the ending of the employment. For more information see LRD’s annual employment law guide Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1771).

Union action against bullying

Employees should never suffer bullying in silence. The TUC publishes online guidance: Bullying at work — Guidance for safety representatives, available at: www.tuc.org.uk/workplace-issues/health-and-safety/bullying/bullying-work-guidance-safety-representatives

The TUC guidance for safety reps gives examples of bullying including:

• competent staff being constantly criticised, having responsibilities removed or being given trivial tasks to do;

• staff being shouted at, being continuously picked on or laughed at in front of others or in private; and

• staff being consistently blocked for promotion.

There have been a number of examples of unions organising industrial action to respond collectively to management bullying when all else has failed.

In March 2015, for example, council workers employed by South Ayrshire Council’s Property and Maintenance department took strike action in a dispute concerning bullying and intimidation by a manager. More than 100 members of construction union UCATT and the general union Unite employed in the council’s Property & Maintenance department took action after raising 37 separate complaints about his conduct.

The employment relations service Acas has produced a guide to bullying which safety reps can use to negotiate policies and the Health and Safety Laboratory (HSL), part of the HSE, has published a detailed review of research in this area.

Several unions have been very active in addressing this issue through collective bargaining. For example, the CWU signed a national agreement with the Royal Mail and the Equal Opportunities Commission (now the Equality and Human Rights Commission) after high levels of bullying and harassment at Royal Mail led to intervention by the Commission. The agreement includes a harassment and complaints procedure, independent investigators to handle formal complaints of harassment, a rolling survey of staff views and an extensive training programme for all workers and management. The union runs a national CWU Harassment helpline and supports branches via a Harassment Advice Network.

Restrictions on the ability of workers to access the employment tribunals to enforce individual employment rights, especially the introduction of fees (see page 66), are likely to result in an escalation in collective responses, both organised and unofficial, and a diminishing reliance on individual rights.

Protection from Harassment Act 1997

A route through the civil courts is offered by the Protection from Harassment Act 1997 (PHA 97). The 2007 case of Majrowski v Guy’s & St Thomas’ NHS Trust, established that the PHA 97 can be used in an employment setting, making an employer vicariously liable for acts of bullying and harassment, as long as there is a sufficiently close connection with employment, and provided the worker can establish a “course of conduct”, directed at him or her and intended to cause alarm or distress.

In practice, however, it is exceptionally difficult to bring a case based on the PHA 97 as a response to workplace bullying. To amount to harassment under the PHA 97, conduct must cross the boundary between being “unattractive and even unreasonable” and become “oppressive and unacceptable” (Sunderland City Council v Conn [2008] IRLR 324) and “of an order which would sustain criminal liability” (Veakins v Kier Islington Ltd [2010] IRLR 132).

Financing any case in the civil courts for personal injury claims (including any claim for psychiatric injury) has been made more difficult following the changes to the law brought in by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, several unions have said that they will bear the costs of these charges and not pass them on to their members.

The National Union of Journalists pledged to continue its campaign against online bullying of journalists carrying out their professional duties. In January 2014, a football supporter, David Limond was jailed for six months at Ayr Sheriff Court after sending a threatening communication, aggravated by racial and religious prejudice. He sent abusive communications to journalist Angela Haggerty, a reporter in Glasgow, who was referred to as “Taig of the day” and “scum of the day” and others were encouraged to abuse her on Twitter.