Workplace Bullying: The Law From a Civil Perspective
By Richard Coulthard, head of the stress at work department for Michael Lewin Solicitors.
Bullying in the workplace can be a major problem and often leads to health problems, such as stress, anxiety or depression and further it creates division in the workplace.
Employees are however given protection in the workplace from bullying by the law. Unfortunately the law is complex and often misunderstood. Many individuals mistakenly assume that any dispute arising out of issues in the workplace must be pursued in the Employment Tribunal. This is not correct.
Indeed the Employment Tribunal would not ordinarily have jurisdiction to determine a claim for damages arising out of bullying unless the bullying was in respect of a protected characteristic (such as sex, race, age or disability) and was therefore discriminatory contrary to the Equality Act 2010. The Equality Act 2010 provides that certain characteristics are ‘Protected’ and therefore if an individual suffers a detriment by virtue of possessing one of these characteristics then that may be discrimination.
Often however bullying or harassment is not specifically in respect of a ‘Protected Characteristic’ and can arise for any number of reasons including, for instance, personality clashes or competition for promotion.
The Protection from Harassment Act 1997 is the principle legislation applicable to bullying cases. The Protection from Harassment Act 1997 makes it unlawful for an individual to pursue a course of conduct which amounts to harassment. This Act is not specific to a workplace environment but it is often applied in this type of situation.
Under Section 3 of the Act, damages are payable if the conduct has caused injury, alarm or distress. The Act also provides that there can be criminal sanctions for breach of the Act.
The Act does not define exactly what constitutes harassment and the Courts have struggled to give any definitive guidance however the indication from the courts is that in order for the conduct to amount to harassment the following criteria must be fulfilled:
- The conduct must have happened on at least two separate occasions;
- The conduct must be targeted at the individual concerned;
- The conduct must be calculated in an objective sense to cause alarm or distress;
- The conduct must be objectively judged to be ‘oppressive and unreasonable’
Even if the conduct is not sufficiently serious to amount to harassment under the Act, an Employer has a duty of care to prevent bullying in the workplace and the Employer may be liable for damages in negligence if they fail to take reasonable steps to prevent bullying.
Irrespective of whether a claim is pursued under the Act or as a claim for ‘common law’ bullying damages may be recoverable for the following:
- Personal Injury
- Loss of Earnings (including future loss of earnings)
- Treatment Costs
- Loss of Pension
- Care and Assistance
It is important to remember however that claims under the Act or claims in negligence are claims which must be pursued in the Civil Courts and cannot be pursued in the Employment Tribunal. Claims of this nature involve complex legal issues and obtain expert advice for a law firm with experience in claims of this nature is vital.