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Bullying Law: Employment law specialists

Employment Law covering Bullying and Harassment in the workplace

The National Bullying Helpline have specialist knowledge in Dispute Resolution, Mediation, Facilitation and employment law. We can advise on the best course of action if you have a legal concern related to bullying. Our advisers are all qualified leaders in HR and Employment Law and we insist that they are all CIPD qualified, have Indemnity Insurance and are registered with the ICO. (Data Commissioner) – in order to ensure your organisation is protected in those areas.

 

We work closely with specialist Employment Lawyers, Family Law Solicitors, Award Winning Conflict Resolution organisations and skilled expert leaders in the field of employee relations. We are obliged under regulations laid down by the Solicitors Regulation Authority to point out where there is a financial referral arrangement between a Solicitor and ourselves.

Bullying Legislation

There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying at work. This does not mean they have no legal protection. It does mean, however, that to get legal protection or redress they must look to parts of employment related law which may be relevant - or to the general law.

 

Bullying at Work is a topical problem in the professions as well as in industry (see for example Jones v Tower Boot Co Ltd CA 1997 ICR 254, CA and the newspaper report of a firm of Manchester solicitors settling for £50,000 a bullying/sex harassment claim brought by a trainee.

 

Useful books on the subject include "Bully in Sight" by Tim Field and "Harassment, Bullying and Violence at Work" by Ishmael and Alemoru, published by the Industrial Society.   (Bully in Sight can be purchased through us. Call our helpline for a copy). ACAS, the HSE and our Government have all produced guidance documents on Bullying and Harassment also.

National Minimum Wage

April 2018 rates (which change every April) for National Living Wage and National Minimum Wage is currently as follows:

Apprentices

Under 18 years old

18 to 20 years

21 to 24 years

Over 25 years

£3.70 per hour

£4.20 per hour

£5.90 per hour

£7.38 per hour

£7.83 per hour

The definition of Apprentice is someone aged under 19 years of age or 19 years and over but in the first year of their Apprenticeship.

We are UK Conflict Resolution experts.

Discrimination (Race, Age, Sex And Disability) Law

In summary there are four major, commonly referred to, areas of discrimination that are protected by UK law and these are; Age, Race, Sex and Disability.

 

 All of these discrimination laws are considered to be ‘a protective characteristic’ which means, simply, you do not have to have 2 full years’ service in order to further a formal action through an Employment Tribunal. That said, we advise that you have your case assessed by an employment law specialist before proceeding.

Sad looking man thats been discriminated against

Race Relations

The original Race Relations Act 1976 was established by Parliament in the UK to prevent discrimination on the grounds of race.  Items that are covered include discrimination on the grounds of race, colour, nationality, ethnic and national origin in the fields of employment, the provision of goods and services, education and public functions.

 

The Act also established the Commission for Racial Equality with a view to review the legislation, which was put in place to make sure the Act rules were followed. The Act incorporates the earlier Race Relations Act 1965 and the Race Relations Act 1968 and was later amended by the Race Relations (Amendment) Act 2000, notably including a statutory duty on public bodies to promote race equality, and to demonstrate that procedures to prevent race discrimination are effective. The Act was repealed by the Equality Act 2010 which supersedes and consolidates previous discrimination law in the UK

a hand shake

Settlement agreements

Under clause 17 in the Enterprise and Regulatory Reform Bill compromise agreements were renamed Settlement Agreements (formerly known as Compromise Agreements. These are a legally defined agreement under which an employee whose working relationship with the employer has become irretrievable agrees, in return for a negotiated financial sum, not to bring a tribunal claim against the employer.

 

Importantly; there is a requirement for the employee to receive independent advice from a solicitor, trade union official or qualified advice worker before entering into a settlement agreement. Call us on 0845 22 55 787 for more information

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The Law is changing all the time.

 Inappropriate use of technology is driving an urgent need for new, sharper, enforceable, laws.

eCRIME and Cyberbullying Legislation

Bullying does not discriminate, we are all potential targets. No one person is immune to Cyberbullying either. Both individuals and organisations may be susceptible to Cyberbullying which targets an individual or an organisation is Cyberbullying.

 

We are hearing about some very serious cases of on-line abuse associated with the workplace.  APP’S are being used to stalk a person (SPYWARE for example), or place a person under surveillance without their knowledge or consent.

 

eCRIME in the workplace is an increasing, very serious, problem that employers are struggling with. It is reported that bullying in the workplace costs UK employers in excess of £2bn per annum in litigation, investigation costs, lost productivity and sick pay.  We think the figure is probably higher.  So, this new anti-social behaviour on line is not helping.

 

There is legislation that covers areas closely associated with eCRIME and Cyberbullying. In this section we look at some of the laws that are in place to protect you.

  • The Protection From Harassment Act 1997
  • The Malicious Communications Act 1988
  • The Communications Act 2003
  • The Obscene Publications Act 1959
  • The Public Order Act 1986
  • The Computer Misuse Act 1990
  • The Health & Safety At Work Act 1974

Bullying Legislation

Stress and the Law

There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying at work. This does not mean they have no legal protection. It does mean, however, that to get legal protection or redress they must look to parts of employment related law which may be relevant - or to the general law.

 

Bullying at Work is a topical problem in the professions as well as in industry (see for example Jones v Tower Boot Co Ltd CA 1997 ICR 254, CA and the newspaper report of a firm of Manchester solicitors settling for £50,000 a bullying/sex harassment claim brought by a trainee.

 

Useful books on the subject include "Bully in Sight" by Tim Field and "Harassment, Bullying and Violence at Work" by Ishmael and Alemoru, published by the Industrial Society.   (Bully in Sight can be purchased through us. Call our helpline for a copy). ACAS, the HSE and our Government have all produced guidance documents on Bullying and Harassment also.

Stress is one on the biggest contributors to long term sick leave in the UK with over half a million workers citing stress, depression or anxiety as a factor to their absence in the last year.

 

The Health and Safety at Work Act 1974 requires employers to take effective measures to control the risks of stress-related ill-health arising from their work activities.

 

The Act requires employers to ensure the health, safety and welfare of employees whilst at work, and this includes their mental as well as their physical health. Work-related stress is here considered to be a health and safety issue like any other workplace hazard.

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Disability Discrimination

Under the Disability Discrimination Act 1995 an employer can become liable for treating an employee less favourably on the grounds of disability if that disability is a depressive illness resulting from stress at work. The Act also requires employers to make reasonable adjustments to working conditions or to the workplace in order to avoid putting disabled workers at a substantial disadvantage.

 

The Employment Rights Act 1996 This is the most common legal basis for bringing a bullying claim, which it understands in terms of a ‘breach of the duty of care’ by an employer. Concern over bullying in the workplace and its relationship to work-related stress has been on the increase over recent years. Bullying can include physical acts, management style and allocation of work. A successful claim in this context would need to show a breach of the employment contract.

Maternity & Sex Discrimination

A claim of automatic unfair dismissal and unlawful Sex Discrimination may be made in an employee suffers less favourable treatment, detriment or discrimination associated with maternity leave or a return to work programme.

 

For example, to make the post Redundant at the point when the employee expresses a wish to return to the workplace would be deemed to be discrimination if the Redundancy is not proven to be genuine.

Covert Recording In The Workplace

Under the HRA (Article 8); covert recording are a breach of the right to privacy unless it can be shown that the purpose of the recording was to prevent “disorder and crime".

 

The same codicil (to "prevent or detect" crime) applies to the DPA, where the right not to have personal data "processed" is also limited by the processing being to prevent a legal breach: These instances would include, for instance, examples of harassment or discriminatory remarks being recorded covertly, or the recording of a pre-emptive and overtly biased disciplinary hearing.

A man playing with his phone in a meeting

However, employers should be alert to the fact that their conversations may be being recorded by their staff. It is all too easy for employees to make high quality recordings of conversations on their mobile phones and other personal devices these days.  A judgment of the Employment Appeal Tribunal (EAT) in Vaughan v London Borough of Lewisham has confirmed that covert recordings may indeed be admissible as evidence in employment tribunal proceedings.

 

Ms Vaughan had made 39 hours’ worth of covert recordings, using a recording device, of conversations between herself and her managers and colleagues.  Following her subsequent dismissal she brought discrimination and other claims against her employer, London Borough of Lewisham as well as others. She sought to rely on the recordings in support of her claims, arguing that the recordings, which included recordings of disciplinary hearings, would show that official notes made during such hearings were wrong in important aspects.

 

This case went all the way to the Employment Appeal Tribunal before Ms Vaughan won her case. In giving judgment the EAT described the practice of covert recordings as “very distasteful” but said that this did not mean recordings made covertly had to be excluded as evidence.

Reasonable Adjustment

Breach of Confidentiality

The Statutory Code of Practice on Employment 2011 – Reasonable Adjustments:

 

The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment.

 

This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably and means taking additional steps to which non-disabled workers and applicants are not entitled.

 

Employers can often prevent unfavourable treatment which would amount to discrimination arising from disability by taking prompt action to identify and implement reasonable adjustments.

Duty of Care

An Employer who Suspends an employee (whatever their level) and then makes an internal announcement, informs customers or makes a statement to the media detailing their concerns and the reason for the Suspension runs a significant risk of the following;

 

1. A claim for Constructive Unfair Dismissal based on their breach of confidentiality

 

2. A claim for releasing negative statement which means they have already made their mind up before a fair hearing/process takes place

 

3. A claim for prima facie breach of trust and confidence and a ‘fundamental breach of the implied term of mutual trust and confidence that goes to the heart of the employment contract’.  RDF Media Limited v Clements (2007) EWHC 2892.

 

This is important Case Law & legislation.

Of particular relevance in a high percentage of cases is the Walker v Northumberland County Council. In this case the employer knew of the stress related risks but failed to take appropriate action.

 

This is a common mistake employers’ make. If your employer expects you to return to a workplace environment that has caused you stress, anxiety and depression (and depression is covered under the DDA as a disability) and they expect you to return without making adjustment – they know that the stress is likely to continue.

 

An expert on Occupational Health might go so far as to say that your stress is an ‘occupational injury’.  The Equality Act 2010 aims to protect disabled people and prevent disability discrimination.

Collusion And Collective Bullying

Also under The Protection from Harassment Act 1997, employers are vicariously liable for harassment caused by the acts of two or more employees, provided the conduct is linked. See (Dawson v Chief Constable of Northcumbria Police. Case ref: 209 EWHC 907 QB).

Workplace Grievances

It is not necessary to make it plain in the writing that it is a grievance or is an invocation of a grievance procedure. Shergold v Fieldway Medical Centre (2006) IRLR 76, RAT on 5 December 2005, reported at (2006) ICR 304.

 

WORKPLACE DISCIPLINARIES - Surprises. Employers need to allow employees ‘ample opportunity to read documentation’ prior to formal meetings. Statutory Code of Practice on Employment 2011, Chapter 17; ‘Employers should ensure that when conducting disciplinary and grievance procedures they do not discriminate against a worker because of a protected characteristic.

 

For example, employers may need to make reasonable adjustments to procedures to ensure that they do not put disabled workers at a substantial disadvantage’.

 

Hutchins v British Railways Board (1974) IRLR 303.   Also see Gold’s v McConnell (1995) IRLR 516.  Simply, there should be no surprises in the work place or in the employment contract.

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Whistleblowing; Public Interest Disclosure Act 1998;

Most people will have heard of 'whistleblowing' from the high-profile cases reported in the media.  Whistleblowing occurs when an employee or worker provides certain types of information, usually to the employer or a regulator, which has come to their attention through work. The whistleblower is usually not directly, personally affected by the danger or illegality, although they may be. Whistleblowing is therefore ‘making a disclosure in the public interest’ and occurs when a worker raises a concern about danger or illegality that affects others, for example members of the public.

 

Employees and workers who make a ‘protected disclosure’ are protected from being treated badly or being dismissed.  The situations covered include criminal offences, risks to health and safety, failure to comply with a legal obligation, a miscarriage of justice and/or environmental damage.  For a disclosure to be protected it must usually be made to an appropriate body. For example, disclosing a health and safety issue to the Health and Safety Executive is likely to be protected, but not if the concern was disclosed to the media.

Overlapping Procedures – Overlapping Disputes Rule

(Employment Act 2002, Dispute Resolution Regulations 2004 SI 2004/752 regs 6 and 7) In some cases it is not clear whether it is the disciplinary procedures or the grievance procedures which apply, or both.  Should your employer raise, or attempt to raise, a formal disciplinary and you have already submitted a grievance - the Overlapping Disputes Rule may apply.

 

In recognition of this eventuality, the Government has included a section in the DTI Guidelines to the 2004 Disciplinary and Grievance procedure, arising out of The Employment Act 2002 Dispute Resolution Regulations 2004.

 

Where an employee is subject to a disciplinary procedure but believes that the real reason for the disciplinary action being taken is discriminatory, or for a reason other than that stated by the employer, they may raise a grievance against their employer.  It is in these situations that the Overlapping Disputes rules apply and the employer may address both the disciplinary and the grievance aspect to the dispute at the same meeting.

The Protection From Harassment Act 1997

The Protection From Harassment Act 1997

One route by which employers can be made liable to pay huge damages for harassment of an employee by fellow employees was opened up by The House of Lords in 2006 when it held that, in some circumstances, a bullied employee can win damages under The Protection from Harassment Act 1997 s.3. This is so notwithstanding that the Act was originally intended as an anti-stalking measure and notwithstanding that, there was no negligence on the part of the employer (See: Majrowski v Guy’s & St Thomas’s NHS Trust L 2006 UKHL 34).

 

Under The Protection from Harassment Act it is a criminal offence to commit an act of Cyberbullying with intent to harass another person or which the perpetrator knows, or reasonably ought to know, amounts to the harassment of another person.

 

6-months Imprisonment

A person found guilty of this behaviour could face imprisonment of up to 6 months, or receive a financial penalty, or both.

Up to 5 years imprisonment

Section 4 of the Act provides the potential for greater punishment to those found guilty o f causing another person to believe, on two or more occasions, that violence will be used against them. A person found guilty of this offence could face up to 5 years imprisonment.

Restraining Orders

The 1997 Act also gives Courts powers to grant Restraining Orders against those found guilty of one of the above offenses.

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The Protection From Harassment Act 1997

The Malicious Communications Act 1988

Section 1 of the Malicious Communications Act 1988 states that it is an offence for any person to send a communication that is “indecent or grossly offensive” with the intent of “causing distress or anxiety to the recipient” and this includes threats and information which is false or known or believed to be false by the sender of the communication.

6-months Imprisonment and/or £5,000 fine

A person found guilty of this behaviour could face imprisonment of up to 6 months or a fine of up to £5,000 or both.

The Protection From Harassment Act 1997

The Health & Safety At Work Act 1974

Under the Health and Safety Act at Work 1974, all employers have a Duty of Care to provide employees with a safe working environment.  If an employee can prove they are a target of eCRIME in the workplace, by colleagues using Company technology (computers, mobiles etc)., the employer may be in breach of their duty to protect employees under The Health & Safety at Work Act. In such a case (described above) an employee is advised to raise a formal complaint ie: a Stage 1 Grievance.  Refer to the Company Harassment and Grievance Policies and trigger the formal process.

The Protection From Harassment Act 1997

Obscene Publications Act 1959

The Protection From Harassment Act 1997

The Public Order Act 1986

This is an old piece of legislation which still applies today.  It is an offence to publish an obscene article intended to deprave or corrupt persons likely to read, see or hear the matter contained or embodied in the article.

 

Publishing includes; circulating, showing, playing or projecting the article or transmitting that data.

Under Section 5 of the Public Order Act 1986 it is an offence to use threating, abusive or insulting words, behaviour, writing or any visual representation likely to cause harassment, alarm or distress within the hearing or sight of a person.  With regards to Cyberbullying, this offence could apply where a camera or video functionality now found on the vast majority of mobile phones is used as a way of causing such harassment, alarm or distress.

Photo of law books

“The Equality Act protects people from being victimised for making complaints about any form of discrimination in the workplace. It also says employers have a responsibility to take complaints seriously and to put a stop to discrimination".

The Equality Act

The Protection From Harassment Act 1997

The Communications Act 2003

The Protection From Harassment Act 1997

The Computer Misuse Act 1990

Section 127 of the Communications Act 2003 states that it is a criminal offence to send comments electronically which are deemed “grossly offensive or of an indecent, obscene or menacing character”.

 

6-months Imprisonment or a fine If found guilty a person can receive up to 6 months imprisonment, a fine or both.

If, during the course of an act of eCRIME (cyberbullying) a person hacks into the victim’s online accounts or personal computer, they may be committing an offence under this piece of legislation.

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Case Law - Claims against the NHS and tribunal decisions.

Michalak v Mid Yorkshire Hospitals NHS Trust ET/1810815/08

A former NHS worker was awarded £933,115 in compensation after an employment tribunal found that he had been subject to racial discrimination and unfair dismissal. Elliot Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. Browne told an employment tribunal that he had been the victim of “discriminatory treatment” in the final year of his employment at the trust and had been unfairly dismissed.

 

The tribunal found that Browne had suffered “systematic discrimination” and “an intimidating environment” in his role, and that after Browne had raised a grievance the trust had failed to take it seriously or investigate it sufficiently. The expenditure of almost £1 million of taxpayers’ money could have been avoided if this employer had just followed its own policies and procedures – experts say.

Brown v Central Manchester University Hospitals NHS Trust ET/2407264/07

An Employment Tribunal awarded a former NHS doctor one of the largest every discrimination pay-outs after she was subjected to a sustained campaign of sex and race discrimination.  The tribunal found that three senior managers, one of whom was the HR Director, to be jointly and severely liable.

McGraw v London Ambulance Service NHS Trust ET/3301865/11

ET’s are currently approaching the concept of ‘discrimination arising from disability’ under The Equality Act 2010, as this case shows.  However, the claimant (the employee) lost the case because he failed to demonstrate a link between his disability and his treatment by the employer.  However, this is an important case which should not be underestimated.

Other Case Law Examples

Job References and Misstatements

Royal Mail Racism

Damages for negligent misstatement were awarded in a case involving Swindon College and Mr McKie, an art historian.    The Judge described a job reference issued to a prospective employer to be ‘slapdash’ and staggering – due to reference to a formal process which was contrary to an earlier, positive, job reference issued.

 

Also, in the case of Kidd v Axa Equity & Law Life Assn’ce Soc’y Plc (IRL 301 QBD) it was said; ‘There is no general or statutory obligation on an employer to give a reference for an ex-employee but in particular cases there may be a contractual or other obligation to do so, either express or implied.  However, if an employee does give a reference for an ex-employee he must take reasonable care to ensure that it is not misleading.

The Manchester College – Tupe Case

This rare case involving Manchester College demonstrates that a Judge will occasionally make an order for reinstatement in TUPE cases. It was decided that there should be re-engagement by way of recognising the breach of TUPE that has occurred here.

Discrimination due to partner’s disability

As this case demonstrates, it is unlawful for an employer to discriminate against an employee by treating him or her less favourably than others because of someone else’s disability. http://www.xperthr.co.uk/article/114101/employee-discriminated-against-because-of-his-wifes-disability.aspx

In August 2012 a bungled racism case cost Royal Mail big tribunal pay-out. Employer investigation into complaint ‘shambolic,’ says EHRC . A Royal Mail employee who blew the whistle on racism at his workplace but was then sacked is believed to have won £100,000 compensation in an employment tribunal.

 

Abdul Musa, a former worker at a RM depot in Blackburn, reported racist behaviour at the depot to managers, which resulted in one worker being sacked and others disciplined. However, following his complaint, Musa was victimised by remaining colleagues as managers failed to protect or support him, the tribunal heard. He was then sacked so claimed both race discrimination and unfair dismissal.

 

The tribunal found failings in the employer’s internal investigation, which it said had not examined complaints that union representatives from the Communication Workers Union had backed an unofficial campaign to have Musa sacked by fabricating evidence.

 

The tribunal judgment said RM’s managers had viewed Musa as “a problem” in terms of the negative reaction of other workers, which could only be solved by dismissing him. The Equality and Human Rights Commission (EHRC), which funded Musa’s legal representation, called RM’s internal inquiry into the complaint “shambolic”.

 

John Wadham, general counsel for the EHRC, said: “The Equality Act protects people from being victimised for making complaints about any form of discrimination in the workplace. It also says employers have a responsibility to take complaints seriously and to put a stop to discrimination".

 

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