BULLYING AT WORK. The Germans call it psychoterror. In the UK we know it as bullying. Over recent

Transcription

1 BULLYING AT WORK What is bullying? The Germans call it psychoterror. In the UK we know it as bullying. Over recent years, reports and accounts of work place bullying have become common place in the media with article headlines graphically demonstrating the extent of the problem:- Nightmare 9 to 5 - Health Visitor Behind the corporate bike shed Solicitors Journal Give me all your cigarettes The Times The Fair Treatment at Work Survey conducted by the DPI in 2005 recorded that nearly 5% of those interviewed had personally experienced bullying or harassment at work in the previous 2 years and more than 1 in 10 commented that they were aware of another person who had been bullied or harassed within the same time period. The International Labour Organization defines bullying as offensive behaviour through vindictive, cruel, malicious or humiliating attempts to undermine an individual or groups of employees. The Andrea Adams Trust, a UK charity established to tackling work place bullying observed that there is no simple definition of bullying because of the variety of forms which it can take and the situations in which it can arise but commented that it involves a gradual wearing down process that makes individuals feel demeaned and inadequate, that they can never get

2 anything right, and that they are hopeless, not only within their work environment, but also within their domestic life. Whilst verbal abuse and physical violence may be obvious examples of bullying it can also arise from subtle, less obvious behaviour including :- abusive, insulting or offensive language by one or more persons to another or others; humiliation through gestures, sarcasm, criticism and insults; setting unrealistic deadlines that are difficult to achieve or tasks that are beyond a persons skill levels; sabotaging a persons work by deliberately, for example, withholding or supplying incorrect information, denying access to information or resources, not passing on messages and the like; persistent and unjustified criticism, often about petty, irrelevant and insignificant matters; leaving offensive messages on or telephone; making a person the butt of practical jokes; deliberately excluding and isolating a person from work place activities; What is reasonable management action Not every unfavourable course of action taken by an employer in relation to an individual employee will constitute bullying behaviour. Provided management action is sound, consistent, taken in full possession of the facts and is not arbitrary the following are types of action that may be reasonable : performance management procedures

3 a decision not to promote disciplinary procedures provided they meet statutory minimums illness and absence procedures genuine work place processes such as restructuring Factors which may increase the likelihood of work place bullying Poor management skills, ineffective policies and inadequate complaints handling procedures to deal with work place grievances are often present in work places where bullying occurs. ACAS advise that bullying may become an issue due to :- authoritarian style of management failure to address previous incidences of bullying unrealistic targets or deadlines prejudice and discrimination personality of colleagues/managers inappropriate performance management systems Anti-bullying procedures All employers should have a formal grievance procedure in place to deal with problems at work. Such procedures should follow the ACAS Code of Practice for Disciplinary and Grievance Procedures which provide assistance to both employer and employee as to how a formal procedure should operate. Failing to follow the ACAS code is not illegal but if an employer or employee ignore it or refuse to comply with it, compensation ultimately awarded by an Employment Tribunal can be increased or decreased respectively.

4 In brief, once an employee has submitted a grievance, including one containing a complaint of bullying, the employer should arrange a meeting at a reasonable time and place to discuss the grievance. An employee has a right to ask either a trade union rep or a work colleague to attend the meeting with the employee. The meeting should be held in private and at which the employee should be provided with an opportunity to explain the grievance and to make suggestions as to how it could best be resolved. An employer should then investigate the grievance before making a decision on how the grievance is to be responded to. An opportunity to appeal should be given. A further meeting should take place at which the employee again has the right to be accompanied by a trade union rep or work colleague and after the appeal meeting the employer should write and inform the employee of their final decision. Concerned employers should, however, establish a specific anti-bullying policy in order to set out the organization s commitment to outlawing incidents of bullying and thereby provide employees with confidence that complaints of bullying will be taken seriously. As a minimum, the policy should provide clear guidelines which :- provide a commitment from the employer to foster a bullying free work place environment reaffirm that bullying will not be tolerated and detail the consequences of breaking organisational standards and the sanctions involved describe which kinds of behaviour are acceptable and which are not indicate where and how victims can get help

5 provide a clear commitment to no retaliation against employees who report work place bullying outline the remedial/disciplinary action that will be taken against those who are alleged to have bullied or victimized someone who has made a complaint or those who make malicious, frivolous or vexation complaints ensure prompt action when work place bullying occurs provide a clear procedure for making a complaint give details of counselling and support services available for the victim maintain confidentiality The policy should be readily available to all employees. The impact of work place bullying on employers Bullying at work is likely to cause serious problems for an employer both in terms of productivity of the business and the well being of the work force. Absenteeism, turnover and general workforce effectiveness are likely to be negatively affected. The effects of workplace bullying are stated to cost the UK upwards of two billion pounds a year. Organizational costs may include :- the breakdown of teams and individual relationships bad publicity, poor public image and becoming known as a difficult work place environment. Witnesses of bullying are often reported as leaving their jobs as a result of the experience. a higher absenteeism rate low morale and erosion of work loyalty and commitment

6 an increase in costs associated with counselling, mediation, advertising for and recruitment and training of new employees increase in legal costs, insurance premiums and claims possible criminal action in the case of physical injury or threats of physical injury Large sums in damages can be payable by employers to employees found to have been victims of bullying at work. In 2006 Deutche Bank was ordered to pay damages of 850,000 plus costs to a former employee bullied by her colleagues and who subsequently suffered from a depressive illness. Similarly, in 2011, an Employment Tribunal in Manchester, awarded a sum of 933,000 compensation to an employee for racial discrimination which severely affected his health. The sum included compensation for unfair dismissal, aggravated damages, loss of earnings and pension.

7 What should you do if you are being bullied at work? Keep a diary of events recording incidents in detail including date, time, location, what was said or done and names of any witnesses willing to support you. Seek support from a colleague or, if available, a trade union representative. Focus on regaining control by taking positive action in response to the bullying. If you feel able, address your concerns with the bully asking them to stop. Obtain and read, if available, any work place bullying policy and follow as appropriate. Bring the bullying behaviour to the attention of management Submit a formal grievance Take legal advice.

8 Effects of work place bullying on victims Exposure to work place bullying may result in a range of psychological difficulties and disorders including :- high levels of stress impaired ability to make decisions and poor concentration loss of self confidence and self esteem feelings of social isolation at work panic attacks, anxiety disorders, depression, withdrawal from usual social interaction deteriorating relationships with family and friends reduced output and performance and incapacity to work sleep disturbance including insomnia or chronic fatigue drug and alcohol abuse anger It is likely that victims of work place bullying resulting in ill health become more susceptible to attack and extreme reaction can lead to post traumatic stress disorder.

9 Signs for employers to look for as indirect indicators of bullying and harassment Increases in levels of absenteeism and staff turnover Increases in use of employee counselling services Negative feedback from appraisals Breakdown of relationships between workers, customers and management Workers becoming withdrawn and isolated Poor worker morale Erosion of loyalty and commitment

10 The legal position In spite of the prevalence of work place bullying and the fact that it appears to be on the increase there is no specific legislation in the UK dealing with the issue. In the recent past the only stand alone statutory complaint available to a bullied employee had to have a sex, race or disability focus in order to enable an employee to pursue the bully and/or the employer under the discrimination legislation. If, as is often the case, the bullying acts have no discriminatory element a variety of employment, personal injury, civil and criminal legislation and case law has to be considered. In many claims it is fair to say that there has been judicial resistance to efforts made by lawyers to expand the law with a view to providing effective remedies for bullied employees. Dependent upon the circumstances of the particular bullied individual the following possible claims may arise :- Discrimination - Where bullying involves direct or indirect discrimination a complaint to an Employment Tribunal may be brought by an employee bullied because of their race or national origin, sex, gender reassignment, disability, sexual orientation or religious or other belief or age. According to the Equality Act 2010 there are 3 types of harassment:- unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or violating the complainant s dignity; unwanted conduct of a sexual nature (sexual harassment);

11 treating a person less favourably than another person because they have either submitted to, or did not submit to, sexual harassment or harassment related to sex or gender reassignment the perceptions of the recipient of the harassment are important and harassment can be deemed to have occurred even if the intention was not present but the recipient felt they were being harassed. A person may also make a complaint of harassment even if the conduct is not directed at them. Section 124 of the Equality Act 2010 governs the level of compensation that can be awarded by an Employment Tribunal in a successful discrimination claim. Awards for unlawful discrimination will usually include compensation for injury to feelings. Dependent upon the seriousness of the bullying incidents, compensation for hurt feelings will fall between 600 and 30,000. The claim may be brought whilst the employee remains in the employment of the employer. Damages for proven discrimination can include an award for hurt feelings to reflect the injury element of any bullying behaviour. Unfair/constructive dismissal - An employee who is forced to resign due to the effects of bullying or who considers that he or she has been dismissed as a result of making a complaint in relation to bullying may be entitled to lodge a claim to the Employment Tribunal for unfair dismissal. Compensation for unfair dismissal covers only pure financial loss arising out of the termination of employment and no damages can be awarded for injuries suffered or hurt feelings. The Protection from Harassment Act 1997

12 This Act may used to provide victims of bullying and harassment at work with a further potential remedy. Employers owe a duty of care to protect their employees from ill treatment that could be detrimental to their health and where one employee, in the course of his or her employment, harasses another, the employer may be responsible for that harassment if there is a sufficiently clear link between the work and the harassment. To commit an offence under this Act, a person has to pursue a course of conduct that amounts to harassment and which that person knows or ought to know amounts to harassment. If a reasonable person would think the conduct is harassment a court will consider it to be so. There must be more than one event to constitute a course of conduct. Damages under this Act can provide for anxiety caused by the harassment and any financial loss so caused short of injury to health. The Act also allows victims to apply to the Court for an Injunction. Criminal injuries Physical and sexual assault are criminal offences which should be referred to the police and which may entitle the victim to make a claim to the Criminal Injuries Compensation Authority. Compensation is for the injury suffered, is subject to a tariff and loss of earnings are only recoverable if there is a very lengthy absence from work as a consequence of the injury. Health and safety claim for damages The Health and Safety at Work Act 1974 imposes upon employers a duty of care to look after the health and safety of all their employees at work. Employers must identify hazards in the work place and assess and control risks associated with those hazards. Employers have a legal duty to take

13 reasonable care not to place the health of their employees at risk by excessive and sustained levels of stress and reducing the risk of exposure to work place bullying is part of this general duty. Employers should identify factors in their work places that allow bullying to occur or to continue and make changes to prevent and control the bullying. The general duties under the 1974 Act cannot form the basis of a civil claim for damages although a breach of some of the regulations applicable may be used to support a civil action. Negligence - The common law provides that employers have a duty to prevent bullying or victimization which the employer knows or should know about and which it is reasonably foreseeable may cause physical or mental harm to an employee. An employee who suffers such harm as a consequence of a breach of this duty by an employer may pursue a civil claim for damages for the physical or psychiatric injury caused and any financial loss that follows. Failure by an employer to prevent staff bullying can amount to a breach of this duty of care. To succeed in such a claim in negligence an employee must prove that:- the injury was reasonably foreseeable; the employer must have breached the duty of care owed to the employee; the employee must have suffered an injury; and that injury must have been caused by the employer s breach. Courts have been resistant to stress claims of this nature and have imposed a strict test centred around the conduct of the reasonable and prudent employer taking positive consideration for his employee s safety in the light of what the employer knows or ought to know.

14 An employee who succeeds with such a claim in negligence may recover damages for physical or psychiatric injury but not for mere stress or injury to feelings. Employers may be responsible for injuries caused to an employee by the bullying of work colleagues. Breach of Contract Every contract of employment contains various implied terms upon which a bullied employee may be able to rely in pursuing a claim against the employer. Relevant terms, for these purposes, include:- that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee; that the employer will take such steps as are reasonable to support the employee in his or her duties without harassment or disruption from fellow employees; and that the employer will take reasonable steps to protect the health and safety at work of its employees A serious breach of these implied terms may entitle an employee to resign and claim constructive dismissal. Malicious communications

15 If the bullying consists of indecent or grossly offensive or threatening letters, s or telephone calls and are known to be so the sender of the message commits a criminal offence under the Malicious Communications Act 1988 if the purpose, or one of the purposes, is to cause anxiety or distress to the recipient. The Postal Services Act 2000 and the Communications Act 2003 also make it an offence to send postal or telephone messages which are indecent, offensive or threatening. These are criminal offences. Whistle blowing The Public Interest Disclosure Act 1998 provides that an employee dismissed for whistle blowing will be considered to have been automatically unfairly dismissed and able to make a complaint to an Employment Tribunal. Whistle blowing includes a disclosure which, in the reasonable belief of the worker making it, tends to show that the health or safety of any individual has been, is being or is likely to be endangered. For example, an employee who perceived herself to be the subject of a campaign of racial harassment wrote a letter to her employer including the observation :- I feel under constant pressure and stress awaiting the next incident which was found to be a statement that the employee s health and safety was being or was likely to be endangered and a qualifying disclosure. A remedy, therefore, potentially exists for a bullied employee who reports the problem without suitable action being taken by the employer.