Many security professionals are managers of people. They may not be sufficiently briefed to foresee a looming ambush of costly litigation, with employees seemingly having more and more ‘comeback’ against treatment or behaviour they may view as unacceptable. In addition, if you’re aware that bullying or harassment is taking place in your team(s) and merely dismiss it as harmless ribbing – or, even worse, ‘character building’ – you’re dangerously exposed because the obligations of ‘protection from harassment’ come very much into play.
On that basis, let’s outline the legal framework surrounding this ‘new phenomenon’, in turn drawing on existing legislation, common law and case law. The terms ‘harassment’ and ‘bullying’ are used interchangeably as meaning ‘unwelcome and unwarranted treatment’, although it must be recognised many organisations draw a fine distinction between the two.
ACAS – the Arbitration and Conciliation Service – defines bullying and harassment as being characterised by offensive, intimidating, malicious or insulting behaviour. An abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Such behaviour may be obvious or cleverly disguised and has to be viewed through the eyes of the recipient.
Perceptions of the victim
Most would agree on what defines extreme cases of bullying and harassment, but it’s the more subjective areas that can become fuzzy. The primary factor is the perception of the victim, rather than whether or not the manager feels the behaviour amounted to bullying.
Those making the complaint will usually define what they mean by bullying or harassment (for example, by stating it’s something that’s unwelcome or unwarranted and has a detrimental effect). It’s not strictly necessary for the victim to make a complaint at the time, nor for the perpetrator to be aware that the behaviour is unwelcome.
There is no protection at an Employment Tribunal for ‘bullying’ per se, but unfair or unreasonable treatment allowed or unchecked by an employer may well infringe on a given employee’s rights under a number of statutes and common law rulings. It’s worth considering these in some detail.
Statutes and common law rulings
Most of us are aware that, under the Health and Safety at Work Act 1974, employers have a statutory duty to ensure – so far as is reasonably practicable – the health, safety and welfare of employees while they’re at work.
Employees have the right not to be dismissed if they complain about or refuse to work in unsafe conditions (Sections 44 and 100 of the Employment Rights Act 1996). Where the employer fails to conduct a proper investigation into such allegations, harassment or bullying of an employee can lead to an ‘unsafe condition’ – entitling the employee to walk out until such time that the employer has remedied the situation. There’s also the possibility of an employee walking out and not coming back, of course!
The Employment Rights Act 1996 defines what is known as ‘constructive dismissal’ (ie an employee who resigns “in circumstances such that he or she is entitled to terminate their contract without notice by reason of the employer’s conduct” is treated as having been dismissed). In such instances the dismissal will be treated as unfair.
An employee has the right not to be unfairly dismissed by their employer. If unjustified, even progressive disciplinary action can be viewed as constructive dismissal. Be assured that employment law places the onus squarely on employers to justify any actions taken.
Occurrences in the Courts
In the case of Teasdale versus 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 a fundamental breach of contract which entitled the employee to claim he had been constructively dismissed. As the ‘dismissal’ fell within Sections 44 and 100 of the Employment Rights Act, it was deemed automatically unfair.
More specifically, Section 100 states that an employee who’s dismissed will be regarded as unfairly dismissed if the reason for the dismissal is that: ‘In circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work’.
In the case of Harvest Press versus McCaffrey (1999), McCaffrey – a victim of workplace bullying – complained that he’d been constructively dismissed in circumstances covered by Section 100 of the Employment Rights Act. His employers countered that the term ‘danger’ only applied to dangers arising out of the workplace itself, and not circumstances of danger caused by the behaviour of other workers.
The Tribunal found that the word ‘danger’ was used without limitation in Section 100, and that it covered any danger irrespective of origin. Whether an employee would be protected under Section 44 or Section 100 where the claim relates to ‘serious and imminent danger’ (or psychological harm) as a result of harassment has yet to be tested. However, the McCaffrey decision should warn employers to carry out proper investigations into any allegations of bullying and take appropriate action accordingly.
Regardless of any statutory protection for employees against harassment, security managers and directors should also look towards the fundamental tenets of the Contract of Employment for guidance on what is – or is likely to be viewed as – acceptable treatment.
Mutual trust and confidence
There’s an implied term in Contracts of Employment that: “The employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his or her job without harassment or disruption by fellow workers”. Where the employer has behaved badly towards an employee (by act or omission), the employee could treat their Contract of Employment as repudiated.
A particularly important implied obligation is that of ‘mutual trust and confidence’. This makes it clear that an employer has a contractual onus to take care of – and behave reasonably towards – employees. The Courts will uphold a duty to prevent harassment or bullying. Under the Tort of Negligence there’s also a Duty of Care – defined as the obligation to exercise a level of care towards an individual, as is reasonable in all the circumstances – to avoid injury (including psychiatric injury) to that individual.
An employer would be in breach of this Duty of Care if it failed to do what it should reasonably be expected to do (or does what it should reasonably be expected not to do). An employer may be liable if they knew – or ought to have known – of any harassment, but failed to take reasonable steps to prevent it, with the result that an employee suffers ill-health.
Perhaps one of the most interesting developments in recent employment case law is resort to the Protection from Harassment Act 1997 in pursuing a settlement for claims in cases of workplace bullying.
Section 1 of the Act states: “A person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of another. The person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of another”.
Section 8 adds: “Harassment of a person includes causing alarm or distress”. A breach of the Act is a criminal offence, and can also lead to a claim for damages in the civil Courts.
Employers and vicarious liability
There have been two notable cases of this legislation being used at Employment Tribunals. The landmark judgement in the case of William Majrowski versus Guy’s St Thomas NHS Trust (1995) set the precedent that employers can now be held vicariously responsible for bullying of their staff by members of their staff.
In the case of Helen Green versus Deutsche Bank Group Services (UK) Ltd (2006), the High Court upheld a claim for personal injury against the employer due to psychiatric illness caused by bullying and harassment.
Majrowski claimed that he was bullied and harassed by his line manager at Guy’s St Thomas’ NHS Trust between November 1998 and June 1999. Legal proceedings were brought against the Trust in 2003 under the Protection from Harassment Act.
The claim was struck out by the County Court on the grounds that the Act was designed to protect individuals from harassment by other individuals, and not create another level of employer liability. Majrowski appealed in 2005. The Court of Appeal agreed that an employer could be held vicariously liable for the actions of its staff, and that the Protection from Harassment Act was the appropriate piece of legislation under which to claim.
Similarly, in Green versus DB Group Services (UK) Ltd the High Court found that the claimant’s managers knew – or ought to have known – that she was being harassed by fellow workers, and that a responsible employer would have intervened as soon as it became aware of the problem. The culprits should have been warned about their behaviour and informed that disciplinary action could be taken against them if they persisted.
The behaviour of the perpetrators amounted to harassment under the Protection from Harassment Act because it was targeted at the individual, occurred with great frequency and was calculated to distress. The Court upheld Green’s claim and duly awarded damages of GB pound 828,000 plus legal costs.
The case for compensation
The Majrowski and Green decisions offer victims of harassment an alternative and useful option for making a case for compensation. Some of the defences which apply to other claims will not be available to the employer under this Act.
An employer may have a defence under existing employment legislation if it can show that it took all reasonable steps to prevent harassment occurring, but not so when defending a claim for liability under the Protection from Harassment Act. In addition, when bringing a claim under the Act an employee doesn’t have to show that he or she suffered a recognisable injury from the behaviour (or that the injury was reasonably foreseeable).
In fact, the Act specifically provides for a claim where the employee merely suffers ‘anxiety’. It’s likely to be much easier for an employee to bring a successful claim under the Act rather than a personal injury claim.
Furthermore, the time limit for bringing an action under the 1997 Act is six years as opposed to just three months for a liability claim under employment legislation – though there is an EAT ruling that may allow this time period to be extended where it’s ‘just and equitable to do so’ – or three years for a personal injury claim.
‘Foreseeability’: passing the test
A bullying case must still pass the test of ‘foreseeability’ in the sense that injury or illness has to be a foreseeable consequence of the bullying behaviour. For example, in the case of Long v Mercury Communications Ltd (2001), Jeffrey Long was awarded settlement of GB pound 370,000 for illness – caused by the bullying behaviour of Long’s manager and the lack of intervention by his employers – which led to the breakdown of the claimant’s marriage.
However, in Rorrison versus West Lothian College and Lothian Regional Council, Lord Reed emphasised that the injury suffered (in this case as a consequence of a boss setting out to undermine an employee) must be a recognised psychiatric illness rather than everyday ‘stress’.
Employment Tribunals accept that most jobs involve an element of stress, and that capable employees should reasonably be expected to cope with it. Claims do succeed where stress is excessive enough to be defined as injurious and this is attributable to manifestly unreasonable employer behaviour.
Bad language can affect some members of staff sufficiently that sexual swear words could lead to legal action. Indeed, abusive language in the workplace may give rise to employees resigning and claiming constructive dismissal, as its use undermines the relationship of trust and confidence between employer and employee. The use of offensive swear words could also amount to an offence under Section 154 of the Criminal Justice and Public Order Act 1994 if targeted with vehemence at an employee.
Racially-aggravated harassment
Section 32 of the Crime and Disorder Act 1998 makes specific reference to racially-aggravated harassment. At this juncture, it’s opportune to draw the definite distinction between ‘harassment’ and ‘discrimination’.
In the case of De Souza versus The Automobile Association (1986), the claimant took out an action for discrimination against her employers after hearing a manager referring to her by the use of a certain word. The Employment Tribunal rejected her claim, and denied leave to appeal. They held that while this occurrence may have been upsetting for Ms De Souza, “mere racist language” didn’t amount to discrimination because she hadn’t suffered any form of detriment. Such a claim for harassment made in today’s world would have stood a far higher chance of success.
Another very ‘in vogue’ topic is that of injury to feelings – a concept to which many of us will ascribe and that’s often referred to as ‘The Whiners’ Charter’. Like it or not, though, it’s a concept that holds both currency and credence in the Courts.
In Dunnachie versus Kingston-Upon-Hull City Council (2004), the Law Lords decreed that they saw: “…no reason why, in an appropriate case, the amount of compensation should not include compensation for distress, humiliation, damage to a person’s reputation in the community or to their family life”.
This is the first time a Court has indicated that claimants in unfair dismissal cases can be compensated for any kind of loss (including psychiatric injury).