Employers are required as a matter of law to have statutory disciplinary and grievance procedures, the latter of which should be utilised by employees in instances where there are allegations of workplace bullying. In circumstances where such procedures do not resolve complaints, the current legislation provides protection to employees in certain situations. If the unacceptable behaviour is an act of unlawful discrimination on the grounds of sex, race disability, sexual orientation, religion or belief, then the appropriate discrimination legislation can be utilised.
However, where bullying at work, does not have a discrimination aspect, employees will have to consider other possible ways of seeking redress. The one that is most often considered is that of constructive dismissal. To establish this, an employee will have to be able to show that there has been a fundamental breach of contract on the part of the employer and the breach must be sufficiently serious to justify resigning either for a single isolated act, or the last in a series of incidents. Recognising a breach of contract in these situations is not always clear cut, but in the vast majority of cases, the victim will have to establish that there has been a breach of one of the implied terms of employment. Terms likely to be used in this context are:-
- Breach of the implied duty of trust and confidence.
- Breach of the implied duty to provide reasonable support.
- Breach of the duty to provide a safe working environment.
Employers are usually responsible for the acts of their workers, but for an employee to be able to bring a claim for constructive dismissal, he or she must have worked for the employer for a continuous period of 1 year. Employers should be aware that if a constructive dismissal claim is successful, then an employee is entitled to compensation up to a maximum of £56,800, though if it is discrimination related, then there is no limit on what a Tribunal can award.
Employers may also be at risk of possible personal injury claims, if they fail to provide employees with adequate protection from workplace bullying which may constitute a breach of the employer’s duty of care under the Health and Safety at Work Act 1974, whereby employers have a legal obligation to protect both the physical and psychological health of the employees, by providing both a safe place and system of work.
As a result, if a Health and Safety issue is brought to the attention of an employer and it is ignored, then they will be in breach of the Act and/or guilty of negligence.
It is also worth mentioning that bullies can find themselves subject to criminal prosecution, either under the Public Order Act 1994, or the Protection from Harassment Act 1997. Although such acts were largely designed to cover situations outside work, they can be utilised wherw an employee is harassed e.g. making phone calls when the employee is at home, on annual leave or sick leave, and in particular if the calls are made at antisocial times.
Employers are now beginning to recognise the problems that this behaviour causes in the workplace and are therefore trying to eliminate it. There are certain practices that can be used to try and achieve this objective, which include:-
- Framing a clear and formal policy on bullying and/or harassment.
- Setting and maintaining a good example.
- Maintaining fair procedures for dealing promptly with complaints from employees, i.e. clear grievance and disciplinary procedures.
- Making all employees aware in a statement of the standards of behaviour that are expected from them.
- Ensuring employees know that complaints of bullying will be dealt with fairly and confidentially.
However, there is no statutory compulsion on employees to adopt such policies, though given the fact that workplace bullying is now recognised as having such a negative impact on businesses generally, it is highly likely that legislation will be passed to give employees further protection over and above existing discrimination law, so that they will not be forced to resign if they are not able to achieve satisfactory redress.
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