In law, bullying and harassment are two very different points. The key difference between bullying and harassment is that for conduct to amount to harassment it has to be done for a prohibited reason (i.e. the victim’s sex, race, religion etc). Bullying, on the other hand, can be indiscriminate and therefore takes a wide variety of forms, from being rude or belligerent, to destruction of property and even physical assault.
Therefore, what amounts to bullying may not necessarily also amount to harassment. So the fact that an employee claims to have been subject to bullying will not automatically give them a legal remedy. However, a bullied employee could possibly claim unfair constructive dismissal under the Employment Rights Act, (1996).
Employers should not forget that there is an implied contractual term of trust (mutual and confidence) between themselves and their employees. This could add a further avenue for breach of contract to any possible claim. The employee would need to satisfy a Tribunal that the conduct was sufficiently serious to destroy or seriously damage the relationship of trust, resulting in resignation as their only option.
However, for any employee to actually bring a claim to an Employment Tribunal there has to be legislation under which to bring the claim. A claimant can stipulate any one of the following legislative acts that their claim falls under: Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or belief) Regulations 2003, and Employment Equality (Age) Regulations 2006. Generally these acts talk about violating dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.
Under new law, the employer is legally responsible for ensuring that they have done everything possible to avoid workplace conflict. Recent case law means that a Tribunal can require employers to investigate complaints of bullying thoroughly, take steps to resolve workplace conflict, and ensure that strong management does not cross the line into humiliating or offensive treatment.
It is also worthy of note that an employee who suffers any physical or psychiatric injury as a result of workplace bullying, could bring a claim of negligence and/or a personal injury claim. This route is much more challenging for the employee to circumvent, and could potentially increase the bill for costs, but is potentially worth more in damages, because the Tribunal has a cap on its ability to make an award for unfair constructive dismissal.
If an employee proves their case, then the rule of vicarious liability will apply. This means that the employer will be liable to pay any award unless they are able to prove they took reasonable steps to prevent the acts in question from occurring. Even then the employer may not escape liability; especially since the employee could bring a claim against both the employer and the abusive employee as joint respondents in the claim.
Bear in mind that any employee would have to be in employment for one year before being able to bring a claim to Tribunal – this is not the case under discrimination laws though.
Under Dispute Resolution Procedures, a claimant has to have raised a grievance with the employer before taking the matter to Tribunal. However, there has been talk about these procedures being reviewed, so be aware that these rules may change and being proactive with employees may well be the best course of action.
Alyson Pellowe is founder and managing director of People Vision Ltd, a leading provider of cross-industry human resources management and development expertise. For more information visit pvhr.com
This editorial was also featured in The Telegraph Business Club