Dealing with bullying in the workplace

The recent furore caused when a complaint was made about bullying at Number 10 demonstrates just how serious bullying in the workplace is taken.Nancy Lee offers some guidance on dealing with this issue

Bullying is characterised as offensive, intimidating or insulting behaviour, or an abuse or misuse of power and can cause work-related stress, anxiety and illhealth even as extreme as psychiatric illness.

Whilst an employee cannot make a direct complaint to the Employment Tribunal about bullying as such (per se), the employer can be liable for damages under different types of claim where bullying has occurred. An employee can bring a claim for harassment or discrimination on the grounds of sex, race, disability, age, religion or belief, or sexual orientation under the various equality statutes (soon to be subsumed within the Equality Bill).

Alternatively, a claim can be brought under the Protection from Harassment Act 1997. For this, an employee must be able to prove that the "bully" has engaged in a course of conduct (on at least 2 occasions) which is intentional and which the "bully" knew (or ought to know) amounted to harassment. While conduct must be oppressive almost to the point of malicious for this statutory regime to apply, claims do not need to be on the grounds of sex, race etc and there is no need for the employee to prove a recognised psychiatric illness or even that the injury was foreseeable. Once harassment has been established this Act provides for the vicarious liability of the employer. This means the employer will be responsible for the acts of the bully.

An employer can also be held directly liable in negligence for failing to support and help a bullied employee. Where bullying has led to physical or psychiatric injury an employer can be liable, for this the injury must be attributed to the bullying and the employer must have failed in its duty of care by not taking reasonable steps to prevent injury. In one case found on the Tribunal found there to have been negligence and the employee was awarded £800,000 in damages where allegations of workplace bullying were not acted upon.

Finally an employee can bring a claim for constructive dismissal if the bullying causes them to resign and the employer has failed to prevent it, thereby breaching for examplethe implied duty of trust and confidence owed to the employee.

Advice Aside from the risk of legal proceedings there are obvious reasons for an employer to try to prevent bullying in the workplace. If employees are happy at work they will perform better, attendance levels will go up and sickness absence will go down. Furthermore, better working relationships will allow for effective team work and improve productivity. So, just how can an employer ensure bullying is eradicated? An employer must make it very clear that bullying is totally unacceptable by providing clear policies on bullying and harassment, making it clear what steps will be taken against bullies and who is responsible for managing the policy. The policy should also refer to the disciplinary and grievance procedures and how they are to be used in tackling bullying.

The policy should also include steps such as training to prevent bullying.

Clear guidance on what behaviour is acceptable should be provided to employees such as a list of examples of bullying.

An employer should set a good example. An authoritarian style of management can create an environment in which bullying and harassment thrive. Employers should promote open discussion and a culture of support.

When a complaint is made employers must act promptly and ensure confidentiality.

Finally, an employer must be sympathetic in its response to complaints of bullying. Managers should be trained to deal fairly and sensitively with such matters. Counselling sessions can be an effective way to deal with emotive issue.