Comments and Introduction to the case.

Bullying at Work - An Accident Waiting to Happen

When one looks back on the last ten years, there has been such a mass of legislation and case law in the employment field that it can be easy to lose track of all the changes. While some high profile areas of law get almost constant legal and media attention, other areas develop in a slow but sure manner, away from the public gaze. It is only when one sits back to take stock of case law developments that one can see important patterns emerging.

The Trade Union Reform and Employment Rights Act 1993 introduced rights not to be subjected to a detriment or unfair dismissal on health and safety grounds. These rights are contained in S.44 and S.100 ER Act 1996 respectively.

Serious, imminent and dangerous

If an employee reasonably believes that he or she is in serious and imminent danger because of bullying by a fellow worker, that employee may have a variety of statutory protections. Persistent bullying of an employee by a colleague may, where the employer fails to conduct an adequate investigation into that employee's allegations, give rise to `circumstances of danger' entitling the employee to walk out until the employer has remedied that danger. Should the employer dismiss the employee for `walking out', the employee may claim that his or her dismissal is unfair under S.100(1)(d). Even where the employer does not actually dismiss the employee, but instead refuses to investigate the allegations, it may be open to the employee to resign and claim that he or she has been constructively dismissed and that this dismissal is unfair or to claim that he or she has suffered some detriment on the grounds of health and safety. Any such constructive dismissal claim may be easier to substantiate in a tribunal than an ordinary constructive dismissal claim, as one of the cases we consider in the article beginning on page 13 illustrates. In Teasdale v John Walker t/a Blaydon Packaging a tribunal decided that a breach of the duty to take reasonable care of an employee's health and safety was definitely a fundamental breach of contract entitling the employee to resign and claim he had been constructively dismissed. Because the reason for this `dismissal' fell within S.100, it was automatically unfair.

Employees on the verge of a nervous breakdown

It remains to be seen whether or not tribunals will regard all aspects of bullying as potentially giving rise to protection under Ss.44 and 100. This will depend upon the nature of the bullying. In the McCaffrey case the bullying appeared to amount to a threat of physical violence. It remains to be seen whether an employee would be protected under S.44 or S.100 where the employee claims that the serious and imminent danger was from psychological harm. While it may be more difficult for an employee to show that there was a danger and that it was serious and imminent, should these hurdles be surmounted there is nothing to stop the employee claiming the statutory protection.

This could give rise to claims arising not just from bullying, but also from employees who claim that they have been made ill from stress at work. If any employee is so overworked or otherwise stressed that the employee is on the verge of a nervous breakdown and thinks that the working conditions will push him or her over the edge, then the employee's situation may fall within S.100.

In any event, in the light of the McCaffrey decision, employers would do well to make thorough investigations into allegations of bullying made by employees and take appropriate action in accordance with the outcome of those investigations.

The Decision of the court

Employees have the right not to be dismissed if they complain about, or refuse to work in, unsafe conditions. This right is to be found in s.100 ER Act 1996. This provides that where an employer dismisses an employee for one of a number of specified health and safety reasons, the dismissal is automatically unfair. The right contained in s.100 applies to all employees, regardless of their length of service or age.

More specifically, S.100(1)(d) provides that an employee who is dismissed will be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that `in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work'.

In the case reported below, the central issue was whether or not the `danger' referred to in the subsection includes danger caused by the behaviour of an employee's colleague.

Colleague shouts abuse

M was employed by HP LTD as a `machine minder' for approximately two and a half months. He worked night shifts along with one other, considerably younger, colleague, H. M considered that H was behaving abusively towards him and made a complaint about his behaviour to management. They asked H to attend a meeting to be held on the morning of 10 September 1998. But during the night shift beginning on the evening of September 9, H engaged in particularly abusive behaviour. M felt so threatened that he decided to telephone his manager. H stood over M and shouted abuse at him whilst M attempted to make the call. In these circumstances, M was so alarmed that he decided to drive home and make the call to his manager from there.

M informed his manager and, subsequently, a more senior company executive that he would not return to work unless he received assurances about his safety. In effect, M requested that H be dismissed or removed from the night shift. The company director later spoke to H as well as some other day shift workers about the incident and accepted H's account entirely. He did not ask M for his version of events. Soon afterwards, the director telephoned M and informed him that the company regarded M as having resigned by walking out mid shift and that he would receive his P45 in the post accordingly.

Danger is not limited

M complained to an employment tribunal that he had been dismissed in circumstances which were covered by S.100(1)(d) ER Act and had therefore been automatically unfairly dismissed. The employers argued before the tribunal that the word `danger' for the purposes of the legislation was limited to dangers arising out of the workplace itself and did not cover circumstances of danger caused by the behaviour of other workers. The tribunal held that the word `danger' was used without limitation in S.100(1)(d) and that it covered any danger, irrespective of its origin.

The tribunal went on to find that M had indeed been dismissed as he had not terminated his employment; rather, he had sought assurances about his safety. His employers had taken the initiative in regarding this as a resignation and consequently it was the employers who had terminated the employment relationship. The tribunal found that M had been dismissed because he left his place of work.

Next, the tribunal considered whether there was actually a `danger' and, if there was, whether M reasonably thought that the danger was `serious and imminent'. The tribunal found that, because there was no one else in the factory and because H was half M's age, M was unable to predict the actions of his colleague. The tribunal decided in the light of this that M held a reasonable belief that he was in serious and imminent danger. Finally, the tribunal found that there was no other way M could have averted the danger other than by leaving the workplace. The tribunal ruled that M had been automatically unfairly dismissed within the meaning of S.100(1)(d).

Employee was dismissed

The employers appealed to EAT against the decision of the tribunal. They raised several grounds of appeal.

The employers argued that M had resigned as he had in effect presented the company with an ultimatum unless H was moved M would resign. The employers merely took the initiative in accepting M's resignation. Consequently, there was no basis in the evidence for the tribunal to decide that it was the employers who terminated the contract.

Next, the employers submitted that the words `in circumstances of danger' do not cover dangers caused by the individual actions of fellow employees. Rather, the words cover only dangers relating to the work premises.

The employers also argued that the tribunal should have had regard to the employers obligations towards H. In effect, it was argued that the tribunal's decision placed the company on the `horns of a dilemma' in respect of whom they should dismiss.

EAT rejected these submissions on the grounds that they did not raise arguable points of law. They decided that the tribunal had been absolutely correct in finding that M had been dismissed. M had done the opposite of resigning - he had sought to persuade his employers to make his place of work safe by 0 'doing the necessary' with his colleague.

Danger is used without limitation say EAT

As regards the employers submission that the words `in circumstances of danger' cover only dangers relating to the work premises, EAT decided that it was too narrow a view of words which were quite general. EAT held that a workplace may become dangerous because of the actions or omissions of an employee. They referred to the example of an inexperienced and untrained employee working alongside others on dangerous processes. The presence of such an employee, EAT thought, could cause a danger in the workplace. A mistake by that employee might affect his colleagues as well as himself. EAT held that such circumstances would be covered by S.100(1)(d) and that if a fellow worker walked out he would be entitled to protection under the legislation. Accordingly, EAT agreed with the tribunal that the word `danger' is used in S.100(1)(d) without limitation and that Parliament had intended that word to cover any danger, no matter how it arose.

No dilemma for employers

EAT held that the employers submission that the tribunal should have had regard to the obligations of the company to the other employee involved, H, was not an arguable point of law. In EAT's view, the employers did not face a dilemma, since any sensible employer in the same situation would have interviewed M to ascertain his version of events and then formed a view about whether or not M was genuine in his concerns about safety. M's employers had failed to do this.

EAT decided that if, in the instant case, the employers had made the appropriate investigations and decided that there was no real risk of M's colleague behaving inappropriately in future, they would have been entitled to inform M of this assessment and to put him on notice that a failure to turn up for work would be regarded as a serious breach of contract leading to the termination of his employment.

In the light of the above, EAT refused the employers leave to appeal as they did not consider that any points of principle requiring determination had been raised. The tribunal's decision that M was automatically unfairly dismissed was upheld.