Nobody Likes a Bully

It is a sobering moment for the trainee lawyer or junior HR officer when you first realise that there is no law that protects people from bullies at work. Or, as one learned employment lawyer once put it, there is no law against being a "git".

By extension, the recent revelations that Gordon Brown might have thrown his toys (or a printer or a mobile phone…) out of his pram, shouted and barged past people, may have resulted in moral outrage on a national scale, but it is interesting to note that they may not necessarily constitute 'bullying' in the legal sense and may not lead to any actionable claim.

With the exception of some small protection provided by the Protection from Harassment Act 1997 and unless personal injury has been caused by the behaviour (more below), the legal position depends on whether the bullied worker can claim that the alleged bullying is based on one or more of the unlawful discriminatory grounds (sex, race, etc.) or that it is sufficiently serious to amount to a fundamental breach of trust and confidence such as to justify a constructive dismissal claim (assuming the individual has 1 year's service or more). So if Mr. Brown has been a little "highly strung" but to all his staff, on a non-discriminatory and non-specific basis, there is likely to be little or no employment law recourse for them – although that was probably not much comfort for him at Prime Minster's Questions that week.

DISCRIMINATION/HARASSMENT

Bullying is actionable if a worker can show the treatment suffered was, in some way, related to the worker's sex, race, religion or belief, sexual orientation, disability or age or any other 'protected characteristic'. Generally, bullying behaviour on one of these grounds would constitute harassment under the relevant discrimination legislation. Harassment in the discrimination legislation is defined as unwanted conduct that is related to the 'protected characteristic' and has the purpose or effect of violating the individual's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment – in fact, a perfect description of the effect that classic bullying tends to have. This was very successfully demonstrated by Gillian Switalski in her long-running and notorious discrimination, harassment and victimisation claim against her former employers. F&C Asset Management, which has finally settled for an undisclosed "multi-million pound" sum, according to today's press reports.

But what if the bullying is not related to any of the 'protected characteristics' and is simply behaviour of the Gordon Brown (or even Gordon Ramsay) style – what kind of legal recourse do employees have?

PROTECTION FROM HARASSMENT ACT

The Protection from Harassment Act 1997 has recently been used to provide some protection in this regard. Originally a criminal statute put on the books to address stalking, the Act provides that conduct which amounts to harassment of another 'may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question'.

For an individual to succeed in a claim of this nature, there must be conduct which:

1. occurs on at least two occasions;

2. is targeted at the individual;

3. is calculated in an objective sense to cause alarm or distress; and

4. is objectively judged to be oppressive and unreasonable.

An employer will be liable in respect of an employee if another of its employees has committed an offence under the Act in the course of their employment. The impact of this Act in an employment setting is potentially very significant - there is no cap on damages, the limitation period is far longer than tribunal claims, there is no 'reasonable steps' defence and no need to prove any actual injury or discriminatory grounds. However, employment related cases under the Act are actually few and far between. After a couple of worrying cases back in 2006 (Majrowski and Green – see Orrick's Spring 2007 Employment Law Ticker – " Developments in the United Kingdom"), all had gone quiet until recently.

In a recent claim by three police officers (Dowson and Ors v. Chief Constable of Northumbria Police), the High Court took the view that the conduct alleged as harassment under the Act was a 'simple case of people not getting on in the working environment.' The Court further emphasised in its judgment that an employer will only be vicariously liable for harassment committed by an individual, or two or more people acting in concert, if the course of conduct is of 'appropriate gravity'.

The courts seem to take the view that harassment has to be extremely serious to enable an individual to obtain protection from what is essentially a criminal statute and workplace bullying allegations will often not get over this hurdle.

For example, in the case of Sunderland City Council v. Conn in 2008, the Court of Appeal ruled that a manager's conduct did not "cross the boundary from the regrettable to the unacceptable", as it was not sufficiently serious to be regarded as criminal.

In 2009, the Court of Appeal held in Veakins v Kier Islington Ltd that, when deciding if conduct amounts to harassment for the purposes of the Protection from Harassment Act, the primary focus should be on whether the conduct is "oppressive and unacceptable", although the conduct should also be of the type that "would sustain criminal liability".

The one recent case where there has been a moderate victory for the employee was Rayment v Ministry of Defence. Ms Rayment had been a Territorial Army volunteer, later getting a job in the Honourable Artillery Company in London. She claimed that over a period of years she had been subjected to persistent offensive, abusive and intimidating bullying behaviour. Although the court rejected some of Ms Rayment's allegations as insufficiently serious to amount to harassment, it found that the actions of a superior officer who, without prior warning, told her that an administrative error meant that she had no job and must repay a month's salary, an inappropriate final written warning, the decision to discharge her from the army whilst on stress-related sick leave and the re-posting of pornographic pictures in the restroom after she had removed them, amounted to harassment under the Act.

In reaching its decision, the court confirmed that it did consider that certain parts of the conduct alleged to be harassment were "oppressive and unacceptable" but the judgment did not record whether it also considered that conduct to be of the type that "would sustain criminal liability".

In any event Ms Rayment was probably not particularly happy with the result, given that the judge awarded her just under £7,000 damages, whereas the Ministry of Defence are purported to have offered her around £60,000 to settle the claim in advance of the hearing.

IMPLIED DUTIES – CONSTRUCTIVE DISMISSAL, PERSONAL INJURY

All of this does not mean that employers should feel free to ignore bullying in the workplace on a legal (let alone on a moral and morale) level. Whilst it is often difficult to establish a claim of bullying or harassment that is not based on a "protected characteristic", it is still possible that action which constitutes bullying of an individual could lead to a constructive (unfair) dismissal claim, based on a breach of the mutual duty of trust and confidence. Such claims are, of course, subject to the one year qualifying service requirement and the standard unfair dismissal compensatory award cap (currently £65,300).

Where the alleged behaviour has also led to "stress" or some other mental, or even physical injury, seemingly the first reaction of many employees these days (or at least their lawyers' advice) – is that there may also be a personal injury claim. Bullying claims brought under discrimination and/or Protection from Harassment legislation will often also cite personal injury, as a fallback position. A personal injury claim will depend on whether the employee can show that the employer has breached its duty of care to the employee, that the breach was reasonably foreseeable by the employer and that the employee has suffered loss (i.e. the personal injury) as a result of the breach. In bullying cases, if the employer knew or ought reasonably to have known (for example, if the employee has raised the issue with his line manager or HR or had raised a grievance) about the bullying, and the employee can prove the injury, such a claim will be fairly straightforward. Particular care should be taken in relation to the common practice of raising concerns with HR on a "confidential" or "off the record" basis – this could still lead to constructive knowledge on the employer's part.

RECOMMENDED ACTIONS

Regardless of the practical difficulties and considerations in relation to establishing legal claims, all allegations of bullying should be taken seriously and investigated by employers. Disciplinary action (potentially even for gross misconduct) is likely to be appropriate if the allegations are founded and action should be taken sooner rather than later to avoid such situations getting out of hand and leading to potential resignations and claims. Employers should also ensure that they have an up to date Bullying Policy (often part of the Anti-Harassment Policy) which is well publicised and policed to ensure that:

• the risk of claims is reduced;
• they are able to take appropriate action against any bullies; and
• they have a potential defence against at least some of the bullying type of claim.

Whilst many of Gordon Brown's aides rallied round in support of him, keen to deny any bullying behaviour – as an employer, you may not be so lucky!

STOP PRESS

Some of you may have read about potential changes to Parental Leave coming out of Europe. The UK has two years to implement the changes which extend the time off available from three months to four months and enables at least one of the months to be transferred to the other parent. Watch this space for details on implementation.

If you would like to discuss any aspect of this alert or require further information on the matters referred to, please contact Nicola Whiteley on +44 (0)20 7862 4670 or Mandy Perry on +44 (0)20 7862 4637.