Bullying and harassment in the workplace

Bullying and Harassment are two issue that can arise whilst at work and can lead to health problems such as anxiety, depression and stress. Behaviour of this nature can also cause, and often does create, division in the workplace. Examples of bullying or harassing behaviour include:

• spreading malicious rumours
• unfair treatment
• picking on someone
• regularly undermining a competent worker
• denying someone’s training or promotion opportunities

The law in this area is complex and often misunderstood. People often mistakenly assume that any dispute arising out of issues in the workplace must always be pursued in the Employment Tribunal. This is not always the case. The Employment Tribunal does not have jurisdiction to determine a claim for damages arising out of Bullying and Harassment unless it is in respect of a protected characteristic for example such as sex, race, age, religion and belief or disability and therefore contrary to the Equality Act 2010.

The Equality Act 2010 provides that certain characteristics known as ‘Protected Characteristics’(PC). If an individual suffers a detriment by virtue of possessing one of these characteristics, then that amounts to discrimination.

If the Equality Act does not help in such circumstances what protection does an employee have?

The Protection from Harassment Act 1997 (Act) is the principle legislation which is applicable to bullying cases although it is not specific to workplace environment it is often used to deal with such situations as mentioned above.

Under Section 3 of The Protection from Harassment Act 1997 it is unlawful for an individual to pursue a course of conduct which amounts to harassment. Damages can be recovered if the conduct has caused injury, alarm or distress. The Act also provides that there can be criminal sanctions for breach of the Act.

The Act does not define exactly what constitutes harassment; however, the Court has given guidance in these matters. The Court provides that in order for the conduct to amount to harassment the following criteria must be fulfilled:

• The conduct must have happened on at least two separate occasions;
• The conduct must be targeted at the individual concerned;
• The conduct must be calculated in an objective sense to cause alarm or distress;
• The conduct must be objectively judged to be ‘oppressive and unreasonable’

Bullying conduct, whether by a fellow employee, client or member of the public; however, may well entitle an employee to resign and claim constructive dismissal on the basis that the conduct and/or the employer’s failure to prevent it is a fundamental breach of the employment contract. The likely breach would be of the implied term to maintain the trust and confidence of the employment relationship.

Employers has a duty of care towards its employees and the employer must prevent bullying in the workplace and take reasonable steps to prevent bullying. If the Employer fails to prevent bullying in the workplace then the Employer will be liable for damages in negligence even if the conduct is not sufficiently serious to amount to harassment under the Act. Irrespective of whether a claim is pursued under the Act or as a claim in ‘common law’. Damages for bullying may be recoverable for the following:

• Personal Injury
• Loss of Earnings (including future loss of earnings)
• Treatment Costs
• Loss of Pension
• Care and Assistance

To purse a claim under the Act or claims in common law or negligence must be pursued in the Civil Courts not in the Employment Tribunal.

Note that these claims often involve complex legal issues and you should take expert advice from a lawyer.

Please contact Azra on:
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