3 September 2007

Recent surveys are revealing some worrying trends on the extent of bullying in the workplace. The effect of workplace bullying can be costly for both the individual and the organisation so it is important for employers to take a stand and tackle such behaviour head on. 

Unlike harassment, there is no statutory definition of bullying and no legislation specifically to protect employees suffering bullying at work. Bullying is typically described as the use of a position of power to coerce others by fear, persecution, threat or force.  It can range from extreme forms of violence and intimidation, swearing and shouting and humiliating the victim in front of others to the less obvious, e.g. sending someone to Coventry.

Numerous surveys have been conducted into the extent of workplace bullying and they all seem to share one thing in common – the culprit is more likely to be in a management position. According to the National Workplace Bullying Survey, conducted on behalf of the Andrea Adams Trust last year, a third admitted being bullied by a colleague compared to over half who suffered at the hands of their line manager. Directors were cited as being responsible by almost a fifth of the victims. Bullying in this form can be harder to recognise and it is often dismissed for a firm or autocratic management style. However it can be differentiated and may be recognised through behaviour which includes: 

• Persistent negative comments or unjustified criticism
• Setting unattainable targets
• Constantly changing work priorities to cause failure
• Reducing effectiveness by withholding information
• Undervaluing performance
• Monitoring work unnecessarily and intrusively
• Removing responsibilities  

Employees subjected to bullying that does not amount to harassment on grounds of sex, sexual orientation, race, religion, age or disability can not bring a discrimination claim but could resign and potentially claim constructive unfair dismissal.  Any behaviour which causes stress related symptoms or has a negative effect on an employee's morale, confidence or self-esteem is likely to fall into the category of behaviour that may entitle an employee to claim constructive dismissal.  Abuse does not have to be continuous; one incident may be serious enough to destroy trust and confidence. Failing to take reasonable steps to support an employee who has complained of bullying is also likely to breach the implied term to provide a safe place to work.  An employer who knew, or ought reasonably to have known, of the risk to the affected employee may be liable in damages for not taking steps to stop the bullying. In addition, the employee may have grounds to bring a personal injury claim if they suffer depression or have a nervous breakdown as a consequence of the bullying. To be successful, the employee must show that the mental illness was reasonably foreseeable and that the employer had failed to take appropriate preventative action. 

As an alternative to any of the above claims, the employee may now seek remedy under the Protection from Harassment Act 1997 (PHA) following the Court of Appeal’s ruling, upheld by the House of Lords, that employers could be held vicariously liable for employees’ breaches of the PHA. (Majrowski v Guy’s and St Thomas’s NHS Trust (2005)). Under the PHA it is an offence for a person to pursue a course of conduct which he knows, or ought to know, amounts to harassment of another, including causing alarm or distress to the person. The bullying does not need to be discriminatory in nature; it will constitute harassment for these purposes provided it has caused a person "anxiety" or "distress" on more than one occasion. An employer will be vicariously liable if there is a sufficiently close connection between the employee’s duties and the conduct complained of.  Furthermore, there is no defence available to an employer under the PHA and claims can be brought up to six years after the breach.  

Last year, the High Court in Green v DB Group Services Limited upheld a decision to award over £800,000 to an employee who they described had been subjected to a "relentless campaign of mean and spiteful behaviour designed to cause her distress". Helen Green was awarded £35,000 for pain and suffering, £25,000 for her disadvantage in the labour market, £128,000 for lost earnings and £640,000 for future loss of earnings including a pension. Her claims included personal injury for psychiatric illness following the bullying, harassment and work-related stress and a breach of the PHA. 

Employers who want to confront the issue should firstly make sure that they have an effective anti-harassment/bullying policy in place. This should clearly set out behaviour which is unacceptable and which will not be tolerated by employees, including managers, and also customers. The complaints procedure should address how grievances can be raised when the subject of the complaint is the employee’s immediate manager.  However, employees subjected to bullying may nonetheless be reluctant to come forward. According to the National Workplace Bullying Survey victims are less likely to attempt to resolve the issue internally via informal and/or formal procedures preferring to leave the organisation. Therefore, analysing management information on employee turnover, including conducting exit interviews, could reveal problem areas. Similarly, monitoring absences could highlight underlying issues to be investigated. A recent TUC survey suggests that the amount of sick leave taken by employees subjected to bullying is 7 days higher on average.