It is important that employers seek to tackle bullying in the workplace, particularly given its financial, legal and potentially reputational implications. Workplace bullying adversely affects productivity and staff morale. It has been estimated that it costs businesses in the UK in the region of £2 bn per year, having regard to decreased staff performance, staff absences and recruitment costs due to increased staff turnover.
Workplace bullying can also give rise to a host of legal claims for which employers can be held liable, such as:
1. Constructive dismissal: Where an employee is being bullied and the employer fails to take appropriate action once aware of the situation, the employee may resign and claim constructive dismissal on the basis that there has been a breach of the fundamental implied term of mutual trust and confidence, which exists in every employment contract. Such an employee may claim wrongful dismissal, seeking their contractual entitlements (for instance, notice pay and accrued holiday pay), as well as unfair dismissal. Compensation for unfair dismissal is currently capped at £65,300.
Further, it is an implied term of every employment contract that an employer will take reasonable steps to ensure the health and safety of its employees at work, so a bullied employee could also resign and potentially bring constructive wrongful and unfair dismissal claims if this implied term is breached.
2. Personal injury: A bullied employee who suffers physical or psychiatric damage, may be able to pursue a personal injury claim against the employer, depending on the nature and severity of the bullying and whether the employee’s injuries were reasonably foreseeable to the employer.
3. Protection from Harassment Act 1997: The Protection from Harassment Act 1997 prohibits a person from engaging in a course of conduct that amounts to harassment and which a person knows or ought to know amounts to harassment. In Majrowski v Guys & St Thomas’ NHS Trust 2006, the House of Lords unanimously upheld the Court of Appeal’s decision that an employer can be vicariously liable under this Act for harassment committed by an employee in the course of employment. Harassment is a criminal offence, but a victim may also pursue damages and/or an injunction in the civil courts.
4. Whistleblowing: Where an employee raises a genuine concern about bullying (whether on his or her own behalf or others) in good faith and to an appropriate person, this could amount to a protected disclosure for the purposes of the Public Interest Disclosure Act 1998. This would entitle the employee to pursue a claim seeking compensation for any detrimental treatment they have been subject to as a result of making the protected disclosure. If the employee is dismissed for having blown the whistle, the dismissal will be automatically unfair and the statutory cap on compensation for unfair dismissal will not apply.
5. Discrimination: It is unlawful under English Law to discriminate and harass on any of the protected grounds under the Equality Act 2010. Consequently, if an employee can show that they are being bullied or harassed because they have a protected characteristic, they could submit a discrimination claim. The Equality Act has extended protection from harassment to include harassment by third parties such as clients, service users or contractors employed by the organisation. If an employee has complained of harassment on at least two occasions, your organisation may be vicariously liable for that harassment unless you can demonstrate that you have taken reasonable steps to prevent it. As with whistleblowing claims, there is no cap on the compensation an employee can receive if their discrimination claim is successful. Further, they could be awarded an injury to feelings award, which usually ranges from £500 to £30,000.
Given the legal and financial implications of workplace bullying, employers can ill afford not to address complaints of bullying. Employers must review their policies to ensure they are sufficiently robust and make clear that bullying and harassment will not be tolerated. Further, employers must ensure that complaints of bullying are investigated and that they take appropriate disciplinary action against employees found to be bullying others (and where appropriate provide training), to help minimise the risk of being held vicariously liable for such actions.
Source: The People Bulletin Nov 2010.
A recent article in People Management highlighted employees come up with the best ideas in a pub or restaurant. If you had your celebrations there, perhaps staff came up with some great initiatives for 2012. Hopefully the ideas were remembered the next day!
In parallel, training courses located off-site can generate a different energy. Distance from the office seems proportional to seeing the organisation from a distance and gaining valuable insight into working practices. It also means delegates maintain their focus and stay with the group rather than rushing back to their desks. Breaks can solidify or capture the learning and lead to important discussions.
A recent management training programme we rolled out across the UK, identified managers often hold staff meetings in the local pub. This was an attempt to soften the blow of having the meetings out of hours. But walls have ears; these ears could belong to your customers and competitors.
On this particular course, together we generated realistic solutions, we also discussed diversity and concluded the pub is not ideal for everyone; not just because of religious or cultural reasons but it may be too noisy or the recovering alcoholic will not thank you for this choice of venue. We generated a list of local businesses that could provide spaces at a low cost, or for free as part of a meeting space swap or an exchange of services. In addition, delegates agreed they can manage staff expectations by ensuring the job description and interview stipulate out-of-hours meetings.
Any new practice that gets staff talking is a good thing. How many of us lament the loss of human interaction at work? "He sends me an email but we sit opposite!". Although this can be in response to creating a paper trail, it is also habit-forming and before long "Would you like a cup of tea?" will become an email template. So as we move into 2012, it's time to look at setting the scene for creative thinking. Make a New Year's Resolution to plan a meeting away from work and let the creativity flow.
Ali Adolph 2012
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