Workplace bullying and harassment - the law

In the first of two articles about tackling workplace bullying and harassment, Matt Bradbury examines the legal rights and remedies that are available to workers who experience it. The second article will look at strategies and practical methods of resolving workplace bullying scenarios. The law in this article applies in England and Wales.

What is ‘bullying’?

In the UK there is no general legal prohibition on workplace bullying. Rather, there are piecemeal statutory protections which, by and large, focus on the motive or causation of the bullying behaviour or to the common law of contract in conjunction with statutory claims such as unfair dismissal.

One has to look to other jurisdictions such as Sweden or France to find a definition of workplace bullying that applies generally; for example, in Sweden, workplace bullying is defined as ‘victimisation’ (not to be confused with the discriminatory act of victimisation in the Equality Act 2010) and is defined as ‘recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community(1)’. In France, workplace bullying goes by the grand title of ‘moral harassment’.

There are various non-legal definitions of workplace bullying. For example, Acas defines it as:

‘…..offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.’

In the UK, bullying gives rise to a legal claim where the behaviour of the employer:

● relates to one of seven of the nine protected characteristics defined in the Equality Act 2010

● is a ‘detriment’ to which the bullied worker is subjected for one of the reasons prescribed in the Employment Rights Act 1996 and other legislation

● amounts to a breach of an express or implied term of a contract of employment

● is severe enough to be a criminal offence or a civil tort under the Protection from Harassment Act 1998.

The Equality Act 2010 and discriminatory harassment

Overview

The Equality Act 2010 sets out nine protected characteristics, and different types of discrimination or ‘prohibited conduct’. Harassment is defined as ‘unwanted conduct related to a relevant protected characteristic’, which has the ‘purpose or effect’ of violating a worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Although the Equality Act relates to nine protected characteristics, the offence of harassment relates to only seven of them: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. Marital status and pregnancy are excluded from the harassment provisions. However harassment related to marital status or pregnancy can be related to another protected characteristic. For example, a worker might be harassed because they are married to a person of a particular nationality, and harassment of a woman because she is pregnant is clearly related to her sex.

Sexual harassment

There is a separate definition of sexual harassment, where the employer engages in ‘unwanted conduct of a sexual nature’. Here, the gender, sexual orientation or gender identity of the perpetrator and recipient are immaterial. The Act goes further in saying that it is also sexual harassment when a worker is subjected to unwanted conduct of a sexual nature or related to gender reassignment or sex, the worker either rejects or submits to that treatment, and is treated less favourably than they would have been treated had they not, respectively, rejected it or submitted to it. This addresses situations such as one where a woman is dismissed for rejecting the sexual advances of a colleague.

Purpose or effect

The Equality Act differentiates between behaviour that has the purpose of violating the recipient’s dignity, and behaviour that has the effect of doing so. If the conduct is purposeful, it is harassment even if a robust recipient is not troubled by it.

If it is not purposeful but has the effect of violating a worker’s dignity, the tribunal will take into account the circumstances, the recipient’s perception, and whether it was reasonable for the conduct in question to have the effect of violating their dignity. This allows a tribunal to find that a complainant has overreacted to very minor and unintended conduct.

It is noteworthy that the unwanted conduct must relate to ‘a’ protected characteristic, not to ‘the’ protected characteristic of the complainant, and is therefore wide enough to prohibit unwanted conduct related to:

● the protected characteristic of a person the complainant is associated with, such as a friend or family member

● a protected characteristic the complainant is perceived to have

● a protected characteristic generally, so covering ‘background’ conduct such as racially offensive language used in the workplace regardless of the complainant’s own race or nationality, or even

● where harassment focusses on a protected characteristic the perpetrator knows that the recipient does not possess, for example harassment of a man who is known to be heterosexual but the perpetrator makes homophobic slurs against him.

The fact that conduct must be ‘related to’ a protected characteristic allows for a complaint where the bullying is inherently discriminatory - for example racist or homophobic language is used - but also where the bullying is because someone has a protected characteristic but is not inherently discriminatory; for example, a woman in an all-male workplace regularly has her work sabotaged.

Victimisation

The Equality Act also creates an offence of victimisation, where a worker is subjected to a detriment, such as bullying, because they have brought or given evidence or information in connection with discrimination proceedings, alleged discrimination, or done anything else in connection with discrimination such as supported a colleague who has experienced it.

Who is liable?

Individual harassers are liable for their actions and can be named as respondents to a claim. Employers are vicariously liable for the actions of their employees or agents, which were carried out in the course of their employment, and should also be named. An employer can escape vicarious liability by showing that it took all reasonable steps to prevent the harasser from doing what they did, or anything like it; for example, an employer might have sent all of its managers on training about discrimination and have taken very proactive anti-discrimination or bullying and harassment measures. The definition of an ‘employee’ who falls under the protection of the Act is wider than in other legislation and includes employees, workers and even in some cases self-employed contractors who perform work personally for a business. Agency workers are protected as ‘contract workers’ against discrimination by end users and by agencies.

Detriment claims

Bullying is detrimental treatment, and if a person is bullied for a specific reason, the Employment Rights Act 1996, the Trade Union and Labour Relations (Consolidation) Act 1996, the National Minimum Wage Act 1998, the TUPE Regulations 2006, set out a series of ‘detriment’ complaints. A person can bring a detriment claim where they are bullied for:

● being called to jury service

● taking certain actions in relation to health and safety

● taking certain actions in relation to Sunday working

● taking certain action in relation to Working Time rights such as the maximum 48 hour week or paid holiday

● performing functions as the trustee of a pension scheme

● activities as an employee representative

● exercising the right to time off for certain study or training

● making a protected disclosure (whistleblowing)

● Exercising the right to receive the National Minimum Wage

● exercising the right to certain types of leave for family and domestic reasons

● being entitled to tax credits

● making a flexible working request

● refusing to become an employee shareholder

● exercising rights relating to trade union membership and activities

● rights relating to fixed-term employees

● rights relating to part-time workers

● rights relating to being accompanied, or accompanying someone, at a disciplinary or grievance hearing

● rights relating to exclusivity clauses for zero hours workers.

Most detriment complaints may only be brought by employees, but claims relating to working time, national minimum wage, part-time working, whistleblowing, accompaniment at a disciplinary or grievance hearing, rights relating to zero hours working and trade union-related rights may be brought by workers.

The legislative language relating to detriment claims is complex and technical, and too lengthy to summarise here. When considering a detriment claim it is important to refer directly to the relevant legislation to ensure that the alleged reason for the detrimental treatment fits exactly within the definitions of the relevant protected activity. For example, being bullied for leaking information to the press may not bring the complainant within whistleblowing protections.

In most cases, compensation is limited to money compensation for financial losses suffered as a result of the detriment - for example losing income through time off sick because of bullying, or leaving the employment. In respect of whistleblowing claims and claims relating to trade union membership activities, it has been established that compensation may be awarded for injury to feelings.

As with discrimination claims, a complainant will need to establish that the bullying complained of occurred as alleged, and show evidence of causation - that the reason for the bullying was also as alleged. However the burden of proof is on the employer to show that the bullying, if it happened, was unrelated to a protected activity, rather than on the complainant to show that it was. Distinctly from discrimination claims however, the tribunal is not required by law to uphold a claim just because the employer has failed to show an ‘innocent’ cause for the bullying. In this context ‘innocent’ means ‘unrelated to the prohibited reason’.

Breach of contract and claims that can arise from it

Implied terms in the contract of employment

It is unlikely that a contract of employment will contain an express term to the effect that an employee will not be subjected to bullying. However, there is an implied contractual term in every contract of employment to the effect that an employer will not subject its employees to bullying, although it is expressed as one of a number of implied contractual terms:

● that neither party will, without reasonable cause, act in a way which is calculated or likely to destroy the other party’s trust and confidence in them (the ‘implied duty of trust and confidence’)

● that the employer will provide a safe working environment. Bullying is likely to risk the health and safety of employees, due to psychiatric or even physical injury

● that the employer will provide the employee with reasonable support to do their job. Breaches of this term might arise if an employee is asked to take on additional duties, but given no training to do so, or if a junior manager is left to deal with staffing problems with no support from their own managers

● that the employer will provide the employee with opportunity to raise grievances. Employers who fail to deal with complaints about bullying may be in breach of this term.

Legal claims arising from breach of contract in the courts and tribunals

If a breach of these terms is committed, how is a legal claim actioned? Free-standing breach of contract claims cannot be brought in the employment tribunal but only where the employment relationship has ended, and with a £25,000 cap on compensation.

Where the employment relationship is ongoing, a breach of contract claim for damages may be brought in the civil courts. However most such claims related to bullying are likely to be viable only where the claimant has incurred a personal injury as a result of the bullying; the claim is for personal injury arising from a breach of an implied term in the contract, or from the employer’s tort (civil wrong) of negligence. This course of action requires specialist legal representation from a personal injury lawyer and is outside the scope of this article except to say that it must be shown that:

● it was reasonably foreseeable to the employer that a personal injury would occur

● the employer failed in its duty of care

● a psychiatric injury has occurred (rather than stress or injury to feelings)

● the personal injury was caused by the employer’s failure in its duty of care.

Unfair constructive dismissal

In the employment tribunals, a breach of contract is actionable where it gives rise to an unfair constructive dismissal. Where the employer commits a repudiatory breach of an implied term in the contract, the employee accepts that repudiation as having brought the contract to an end, and resigns in response to it; this gives rise to a constructive dismissal. The repudiatory breach and the resignation amount to a situation where ‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct’ and so falls within the definition of ‘a dismissal’ within section 95(1)© of the Employment Rights Act 1996.

A breach of contract is repudiatory where it arises from ‘conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’; Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 2.

For a tribunal, there will always be two questions:

● was there a constructive dismissal; and

● if there was, was it unfair?

The question of fairness depends on the employer showing a potentially fair reason for the constructive dismissal, and whether or not the employer acted reasonably in all the circumstances in dismissing the employer for that reason. In unfair constructive dismissals arising from bullying, it is pretty much a given that the employer has no potentially fair reason for dismissing, and has not acted reasonably in doing so - but the point is to see the breach of contract that led to the constructive dismissal, and the unfairness of that dismissal, as two separate but related matters.

Another useful purpose for examining the reason for the constructive dismissal is to show not only that it is not for a potentially fair reason but that sometimes it is for an automatically unfair reason. Employees can only claim ‘ordinary’ unfair constructive dismissal if they have two years’ service. However, a constructive dismissal is just ‘a dismissal’ and if it is automatically unfair, the two-year rule does not apply. Automatically unfair reasons for dismissal are broadly the same as the reasons that give rise to detriment claims, with the addition of a dismissal for asserting a relevant statutory right. If the bullying, and therefore the constructive dismissal, is because the employee has done one of the protected acts, they have a claim for automatically unfair constructive dismissal.

Note that compensation for unfair constructive dismissal does not include an amount for injury to feelings. Further, it can only compensate for ‘the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer’. In a constructive dismissal claim, losses may be sustained pre- and post-resignation by the bullying, that is by the breach of contract rather than the constructive dismissal that arose from it. For example, a claimant may have had losses due to being off sick before the dismissal, or too sick to seek work after the dismissal. If these losses flow from the pre-resignation breach rather than from, technically, the ‘dismissal’, a free-standing breach of contract claim based on pre-resignation bullying should be pleaded in addition to the unfair constructive dismissal claim.

The Protection from Harassment Act 1997

The Protection from Harassment Act 1997 creates both a criminal offence of harassment, and a civil liability for anyone guilty of harassment. That means that an individual harasser can be prosecuted and given a criminal punishment, including a jail term if convicted, or they can be sued for compensation by the victim under the civil liability provisions. When the harassment is committed in the course of the harasser’s employment an employer can be held vicariously liable for it: Majrowski v Guy’s and St Thomas’s NHS Trust [2006] ICR.

The Protection from Harassment Act defines harassment as ‘a course of conduct’ which the harasser knows, or which a reasonable person in possession of all of the information would know, amounted to harassment, and is said to include ‘alarming the person or causing the person distress’. A ‘course of conduct’ requires at least two incidents to have occurred.

In Majrowski, the House of Lords was at pains to point out that not all ‘unreasonable conduct’ would give rise to a claim under the Protection from Harassment Act, and that the conduct must be serious enough to be capable of giving rise to criminal liability under the Protection from Harassment Act.

However, in Veakins v Kier Islington Ltd [2010] IRLR 132 the Court of Appeal departed from a test of criminal equivalence and said that conduct which went beyond ‘unattractive and unreasonable conduct, or the ordinary banter and badinage of life’ and ‘crossed the line into conduct which was oppressive and unacceptable’ amounted to harassment under the Protection from Harassment Act — but there was still a requirement that a criminal conviction should be possible on the allegations, even if a prosecutor would think it prosecutable.

A claim under the Protection from Harassment Act is made in the civil courts. There is no need to prove that the harassment occurred for any unlawful reason such as discrimination. The client can be compensated for distress as well as psychiatric injury, and the time limit is six years. However the claimant will need legal representation; the claim is likely to be allocated to the fast or multi-track in the civil courts, rather than the small claims track - which means that the claimant will be liable for the defendant’s costs if they lose.

Due to the complexities of the law, bullying claims are often difficult to run and non-legal resolution is preferable. The next article in this series will focus on dispute resolution.

END NOTE

(1) Ordinance of the Swedish National Board of Occupational Safety and Health containing Provisions on measures against Victimization at Work AFS 1993:17

Matt Bradbury is an Employment Expert in the Expert Advice Team at Citizens Advice and is a member of the Adviser Editorial Board.

This article was first published in Issue 178 of Adviser magazine (November/December 2016)

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