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YOUR CONTRACT OF EMPLOYMENT / PUBLIC INTEREST DISCLOSURES
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Fair
Employment Law
BULLYING AND HARASSMENT
Framing the Complaint A sustained campaign of bullying and harassment in the workplace is a fundamental breach of contract and an employer has vicarious liability for the actions of its employees. This is the case even if the employer is unaware of what is going on unless it can provide what is known as a Statutory Defence , that is to say whilst it was unaware of the problem , it had procedures in place which ordinarily should have been expected to have prevented the treatment alleged. It is the paradigm defence in such a Claim in either an Employment Tribunal or in the County Court if a claim for Personal Injury is being pursued separately. An employer who has no procedures in place , or who has procedures but does not apply them , is uniquely vulnerable to any species of Claim based on bullying or harassment ( on any grounds) by other employees because he will not be able to establish any statutory defence. The corollary is of course that if such procedures are in place an employee is expected to use them : not do so will only aid an employer's statutory defence. The split in jurisdiction is interesting. A person who , for instance, is off sick with stress etc as a result of bullying ( unless on grounds of discrimination) and is still employed cannot bring a Claim to an Employment Tribunal until the contract terminates in some way. Even then , except on discrimination grounds, the Remedy sought cannot include damages for the injury caused or the manner of dismissal since statute limits the Tribunal in the type of awards it can make in ordinary Unfair Dismissal. The losses can be significant, for instance the loss of contractual pay in the period of sickness , medical expenses, concomitant losses in domestic life not to mention the personal injury caused. A claimant who is still employed has only one legal claim and that is a claim to the County Court for Personal Injury caused by their employer. They should do this only if the extent of their illness is significant and their employment losses ( as opposed post employment loss) are high and evidence of the employer's culpability is good. Legal advice from a Personal Injury Lawyer MUST be sought. If the contract has terminated, by resignation or dismissal and bullying is a factor, then a conventional Unfair Dismissal Claim can be made , provided it is accepted that only a limited range of awards are possible. It is however possible to split jurisdictions ( something that should be done with the up-most care) and pursue a claim for ordinary Unfair Dismissal in the employment tribunal after the contract terminates ( and only Unfair Dismissal) and a separate Personal Injury Claim in the County Court. If you do this it is essential that you take separate legal advice: if you bring a claim in the County Court you are far more liable to the risk of costs and consequently must be that much more sure of your case. You must also have suffered significant personal injury , at the minimum you should have been treated by your GP , or better been referred to a Consultant. In other words there has to proper medical intervention. A medical report will have to provided at some point. It will have to identify a recognised illness or condition and establish that medical treatment has occurred. If pursuing an Unfair Dismissal Claim on resignation , it will be for the Claimant to establish that he or she has been subjected to treatment that has destroyed Trust and Confidence and the only option is to resign. The strength of such a proposition will be increased if the Claimant has engaged an employer's procedure and the employer has failed to take any corrective action. Ill health complicates the issue only to the extent that an employee who has to take long term sick leave , also runs the risk that they can be dismissed fairly on the grounds of ill health , notwithstanding that the employer may have caused the ill health in the first place. A resignation is the appropriate action but only if the employee has first complained about the treatment and nothing has happened and he or she has reached the point where there is no other option. Any delay after that point , particularly where an employee continues to receive benefits from the employment ( i.e wages) runs the risk that they will be seen to be affirming the contract , ie acceding to the bad behaviour. Receipt of sick pay , particularly SSP is normally neutral and does not imply any waiver of the right to make a Claim however the employee should not be seen in any other way to be adhering to the terms of the contract after the point at which it is evident that a fundamental breach has occurred, even if the point reached is "the last straw".
uploaded 12/11/08 |
Fair
Employment Law
BULLYING AND HARASSMENT
The most prevalent cause of ill health
and long term sickness absence in the working environment and one of the most
difficult for an employee or for that matter an employer, to deal with and for Employment Practitioners
to describe. Most bullying is from senior to
subordinate , although not always and most , in my experience,
from the same sex. It is difficult because in many cases the perceptions
of the parties are very different. The person alleged to be carrying out
the bullying will say that what they are trying to do is force
compliance with working rules that are being ignored , attempting to
improve performance and motivation or they say , genuinely, that they are not
aware that they are bullying. The person alleging bullying is in a
heightened sense of insecurity and may well be more sensitive and
susceptible to what in
normal circumstances they would simply ignore as just
insensitivity. Once on that
particular track , if no action is taken quickly , things go from bad to worse
until someone goes off sick with long term consequences to their career
and well being.
I cannot really do better than the ACAS
guidance link below but I have my own view on the matter. Its easy
to say lodge a grievance but in many cases employees are fearful of
doing this, mainly they fear that the grievance will not be upheld and
they might be held to be troublemakers or worse and
reprisals, official or otherwise may kick in afterwards. Employers are in a difficult position
in dealing with such a grievance because if they uphold the grievance
the victim may insist , perhaps not unreasonably, that
disciplinary action is required. If the putative bully is a senior
person it might be seen to open season on complaints from others who
work for him/her or an open admission may form some complaint of
Constructive Dismissal. Of course all of that may be true ,
however it misses the point that the objective is to stop the bullying
not wreak retribution. It's just that an employer will naturally attempt to solve
matters in an informal way which may be perceived as as not dealing with
the problem head on. What is required is a confidential source that will
listen to the employee's complaint, probably outside the normal
grievance procedures and on a fast track basis to avoid prolonging the
problem. That source should have sufficient seniority to deal with the
matter quickly and authoritatively. Many employers have such a system
and if so it should be used as soon as the problem arises, but not so
soon that a complaint may not be well founded in fact. The employee must
consider how the complaint should be framed and not use any such system
on trivial matters. It would be helpful if they kept a record of
what they say is happening and discuss this with a colleague to get an
independent view before complaining formally. If the employer does not have such
a bullying policy then it is possible to use the normal grievance
procedure but I would advise that an attempt should be made to write to
a senior person outside the procedure in the first instance. That may
just result in a referral back to the grievance procedure but it is
worth a try. If problems cannot be resolved at a first attempt then in
my experience the consequences are usually dire, usually ill health and
a resignation follow. There are true bullies at work as in life , always were , always
will be and they usually bully everyone, are well known for it and
they deserve to be disciplined and removed from the workplace (but
seldom are) but the
majority of bullying arises simply because the pressures and culture of
the modern workplace at all levels, transcend what might in a more
gentle age be called polite
and reasonable behaviour. Its all very sad ....
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