BULLYING IN THE WORKPLACE
PATRICK HALLIDAY
INTRODUCTION
1.
1
Sadly, bullying in the workplace appears to be widespread. 3.8% of respondents to the DTI’s
Fair Treatment at Work Survey in 2005 said that they had personally experienced bullying or
harassment at work in the previous two years. More than one in ten of those surveyed said that
they were aware of another person who had been bullied or harassed over the same period.
2.
Employers need to take this issue seriously. Quite apart from the moral arguments for dealing
with bullying, employers should be concerned by a potential loss of productivity caused by
absenteeism, low morale and staff turnover. They should also be astute to the legal claims
which may be brought against them. Such claims are the subject of this paper. The law now
affords a greater degree of redress for bullied workers, especially as a result of the Protection
from Harassment Act 1997 and the House of Lords’ decision in Majrowski v Guy’s and St
Thomas’s NHS Trust [2006] UKHL 34, [2007] 1 AC that employers may be vicariously liable
under the Act for their employees’ behaviour (see below). Employers may find themselves
paying enormous sums of damages to bullied employees: Deutsche Bank was ordered by the
High Court to pay £850,000 plus costs to one of its former company secretary assistants, who
had suffered from depression and loss of earnings following bullying at the hands of her
colleagues (Green v DB Group Services (UK) Ltd [2006] EWHC 1898 (QB), [2006] IRLR 764;
see below).
3.
This paper deals in turn with the following topics:
(A) the causes of action to which bullying may give rise and the principles according to which
employers may be held vicariously liable for bullying by their employees;
(B) the High Court’s decision in Green v DB, which should serve as a cautionary tale for
employers; and
1
“Bullying” does not have a statutory definition. ACAS defines it as “offensive, intimidating, malicious or
insulting behaviour, an abuse or misuse of power through means intended to undermine, denigrate or injure the
recipient” (‘Bullying and harassment at work: a guide for managers and employers’, ACAS, August 2006).
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(C) some concluding tips as to how employers can minimise the risk of being found liable for
bullying.
A. CAUSES OF ACTION
4.
There is no UK legislation specifically to protect victims of bullying at work. Rather, bullying
brings into play a number of disparate areas of the law. The principal causes of action to which
bullying may give rise are:
(i)
harassment under anti-discrimination legislation;
(ii)
harassment under the Protection from Harassment Act 1997;
(iii) common law negligence;
(iv) breach of contract; and
(v) (usually constructive) unfair dismissal.
5.
(i)
Each of these is dealt with in turn.
Harassment under anti-discrimination legislation
Definition of harassment under anti-discrimination legislation
6.
In the field of employment, harassment on grounds of race, sex, gender reassignment, disability,
religious belief, sexual orientation or age is unlawful under the UK’s anti-discrimination
legislation and delegated legislation (i.e. the Sex Discrimination Act 1975 (‘SDA 1975’), the
Race Relations Act 1976 (‘RRA 1976’), the Disability Discrimination Act 1995 (‘DDA 1995’), the
Employment Equality (Religion or Belief) Regulations 2003 (‘RBR 2003’), the Employment
Equality (Sexual Orientation) Regulations 2003 (‘SOR 2003’) and the Employment Equality
(Age) Regulations 2006 (‘AR 2006’)).
7.
Whereas previously it was necessary to frame harassment claims as claims for direct
discrimination, all six of the statutes and statutory instruments set out above now contain
specific provisions defining harassment and making it unlawful if it takes place on the relevant
ground. The definition is very similar in each context (save for the separate categories of sexual
harassment and harassment for rejection of or submission to unwanted conduct, described
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2
below). A person is unlawfully harassed where, on a prohibited ground (i.e. sex, race, etc) the
harasser engages in unwanted conduct which has the purpose or effect of:
(i)
violating that person’s dignity; or
(ii)
creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(SDA 1975, s.4A(1)(a); SDA 1975, s.4A(3); RRA 1976, s.3A; DDA 1995, s.3B; RBR 2003,
reg.5(1); SOR 2003, reg.5(1); AR 2006, reg.6(1)).
8.
(“Sexual harassment”, which is an additional species of harassment, is defined as unwanted
verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of (i)
violating the victim’s dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or
offensive environment for her (SDA 1975, s.4A(1)(b)). A third species of harassment under SDA
1975 is less favourable treatment of the victim on the ground of her rejection of or submission to
harassment on grounds of sex or sexual harassment (SDA 1975, s.4A(1)(c))).
9.
The test of whether conduct has the relevant effect is not subjective. Conduct is not to be
treated, for instance, as violating a complainant’s dignity merely because he says it does. It
must be conduct which could reasonably be considered as having that effect. However, the
tribunal is required to take the complainant’s perception into account in making that assessment
(SDA 1975, s.4A(2); RRA 1976, s.3A(2); DDA 1995, s.3B(2); RBR 2003, reg.5(2); SOR 2003,
reg.5(1); AR 2006, reg.6(2)).
10. Compensation for unlawful discrimination, including harassment, is uncapped. It will include
compensation for any injury to feelings (s.66(4) SDA 1975; s.57(4) RRA 1976; s.17A(4) DDA
1995; reg.31(3) RBR 2003; reg.31(3) SOR; reg.39(3) AR 2006). Depending on seriousness,
compensation for injury to feelings is likely to be anything between £500 and £25,000 (Vento v
Chief Constable of West Yorkshire Police (No.2) [2003] ICR 318).
Employers’ secondary liability
11. For the purposes of the anti-discrimination legislation anything done by a person “in the course
of his employment… whether or not it was done with the employer’s knowledge or approval” is
2
With the exception of DDA 1995, which requires only that the unwanted conduct be for a “reason which relates
to” the disabled person’s disability, the domestic legislation requires that harassment be “on grounds of” or “on
the ground of” the relevant characteristic. By contrast, the EC Directive from which domestic anti-discrimination
legislation is derived, the Equal Treatment Directive, requires only that the unwanted conduct be “related to” the
relevant characteristic. Burton J in Equal Opportunities Commission v Secretary of State for Trade and Industry
[2007] IRLR 327 held that the domestic definitions of harassment are contrary to EC law. Imminent amendment
of the domestic legislation, in order to bring it into line with EC law, is expected.
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treated as being done by the employer (s.41(1) SDA 1975; s.32(1) RRA 1976; s.58(1) DDA
1995; reg.22(1) RBR 2003; reg.22(1) SOR 2003; reg.25(1) AR 2006).
12. At common law an employer is vicariously liable for acts of negligence committed by its
employee “in the course of employment”. This term was previously interpreted narrowly as
meanings action which are “so connected with acts which [the employer] has authorised that
they may rightly be considered as modes – although improper modes – of doing them”
st
(‘Salmond and Heuston on the Law of Torts’, 21 edn, 1996, p.443). However, the Court of
Appeal in Jones v Tower Boot Co Ltd [1997] ICR 254 ruled that the phrase “in the course of
employment” in the anti-discrimination legislation should not be restricted to the narrow common
law definition.
Rather, it should be given a meaning which accords with a lay person’s
understanding of those words.
13. (To some extent at least the common law definition of “in the course of employment” has caught
up with the statutory interpretation: see below at paragraph 27 ff).
14. The statutory test for an employer’s secondary liability has been neatly summarised as liability
for acts of discrimination committed “at work” as opposed to mere liability for acts committed “as
st
work” (‘Tolley’s Employment Handbook’, 21 edn, 2007, p.244). Discriminatory acts committed
by employees in the workplace will usually fall within the scope of the secondary liability
provided for by statute.
Employers may be held secondarily liable even where the
discriminatory acts take place at work-related social events, such as in the pub after work or at
an organised leaving party (see e.g. Chief Constable of Lincolnshire Police v Stubbs [1999] ICR
547, EAT).
However, secondary liability will not generally attach to acts taking place in
environments unrelated to work (e.g. HM Prison Service v Davis EAT 1294/98: employer not
liable when a female employee received an unexpected visit at home from a male colleague
who made unwanted sexual advances).
15. Employers’ secondary liability under the anti-discrimination legislation is subject to the defence
that the employer took such steps as were reasonably practicable to prevent the act in question
(s.41(3) SDA 1975; s.32(3) RRA 1976; s.58(5) DDA 1995; reg.22(3) RBR 2003; reg.22(3) SOR
2003; reg.25(3) AR 2006). The defence is limited to steps taken by the employer prior to the
discriminatory act as opposed to the employer’s reaction to the discriminatory act (Haringey LBC
v Al-Azzawi (2002) 703 IDS Brief 7, EAT). Where there were steps which it would have been
reasonably practicable to take, the respondent must take them if it is to make out the defence,
even if it cannot be shown that those steps would have prevented the particular discriminatory
acts in question from occurring (Canniffe v East Riding of Yorkshire Council [2000] IRLR 555,
EAT). However, steps which require time, trouble or expense and are likely to achieve little or
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nothing are unlikely to be considered reasonable steps for the purpose of the defence (Croft v
Royal Mail Group plc [2003] ICR 1425, CA).
16. There are statutory Codes of Practice issued to give guidance on the steps it is reasonably
practicable for an employer to take for the purpose of preventing employees from committing
unlawful discrimination in the course of their employment.
(i)
3
The Equal Opportunity Commission’s ‘Code of Practice on Sex Discrimination:
Equal
Opportunity Policies, Procedures and Practices in Employment’ (1985) recommends that
employers should adopt an equal opportunities policy which is clearly stated and, where
appropriate, included in a collective agreement; for whose implementation senior
management has overall responsibility; and which is made known to all employees and,
where reasonably practicable, to all job applicants.
(ii)
The Commission for Racial Equality’s ‘Code of Practice on Racial Equality in Employment’
(April 2006) recommends that employers draw up an equal opportunities policy supported
by an action plan. This plan should aim to promote the equal opportunities policy, making
sure the policy is understood by all and providing training for those with particular
responsibilities under it. Training might address: the law against racial discrimination and
harassment; the employer’s equal opportunities policy; workers’ responsibilities under the
policy to maintain and promote a workplace free from unlawful racial discrimination and
harassment; and the damaging consequences of racial prejudice.
(iii) The Disability Rights Commission’s ‘Code of Practice on Employment and Occupation’
(2004) gives the following example of the employer’s defence being met in a claim for
disability-related harassment.
“An employer has policies relating to harassment and
disability. It ensures that all employees are aware of the policies and of the fact that
harassment of disabled employees is subject to disciplinary action. It also ensures that
managers receive training in applying the policies. A woman with a learning disability is
humiliated by a colleague and disciplinary action is taken against the colleague. In these
circumstances the colleague would be liable for aiding the unlawful act of the employer (the
harassment) even though the employer would itself avoid liability because it had taken
reasonably practicable steps to prevent the unlawful act.”
17. To summarise, the Codes recommend that employers adopt equal opportunities policies; that
the policies have management backing; that there is equal opportunities training; and that the
3
The functions of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability
Rights Commission were taken over by the unified Commission for Equality and Human Rights (‘CEHR’) on 1
October 2007. However, the CEHR is yet to replace the Codes of Practice issued by its predecessors.
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policies are enforced by disciplinary sanctions. In addressing the employer’s defence tribunals
will have regard to these Codes. Employers are therefore well advised to follow them.
(ii)
Harassment under the Protection from Harassment Act 1997
The definition of harassment under the 1997 Act
18. The Protection from Harassment Act 1997 makes harassment a statutory tort for which victims
of harassment may recover damages. Section 1 of the 1997 Act provides that:
“(1) A person must not pursue a course of conduct (a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
...
(2) for the purposes of this section, the person whose course of conduct is in question
ought to know that it amounts to or involves harassment of another if a reasonable person
in possession of the same information would think the course of conduct amounted to or
involved harassment of the other.”
4
19. By s.3 a breach of s.1 may be the subject of a claim in civil proceedings, and on such a claim
“... damages may be awarded for (among other things) any anxiety caused by the harassment
and any financial loss resulting from the harassment”.
20. S.7 provides that:
“(2) References to harassing a person include alarming the person or causing the person
distress.
(3) A "course of conduct" must involve -(a) in the case of conduct in relation to a single person ... conduct on at least two
occasions in relation to that person...
...
(4) “Conduct” includes speech.”
21. The meaning within the Act of harassment was considered (obiter) by the Court of Appeal and
House of Lords in Majrowski and Guy's & St Thomas' NHS Trust [2005] EWCA Civ 251, [2005]
QB 848; [2006] UKHL 34, [2007] 1 AC 224. M was a former employee of the Trust. In 1998 he
alleged that his departmental manager F had bullied and harassed him at work. The Trust
investigated his complaint and found that harassment had occurred. M subsequently left the
Trust’s employment in 1999 for unrelated reasons. In February 2003 – more than four years
after his complaint – M brought a county court claim against the Trust under s.3 of the 1997 Act.
The Court of Appeal and House of Lords decided that M’s claim should not have been struck out
at first instance.
4
The Act also makes harassment a criminal offence: s.2.
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22. At paragraph 82 in the Court of Appeal May LJ cited the following passage from the judgment of
Lord Phillips MR in Thomas v News Group Newspapers Ltd [2002] EMLR 78 at paragraph 30:
“The Act does not attempt to define the type of conduct which is capable of constituting
harassment. "Harassment" is, however, a word which has a meaning which is generally
understood. It describes conduct targeted at an individual which is calculated to produce
the consequences described in s.7 and which is oppressive and unreasonable.”
23. May LJ then continued at paragraph 82 of his judgment:
“Thus, in my view, although s.7(2) provides that harassing a person includes causing the
person distress, the fact that a person suffers distress is not by itself enough to show that
the cause of the distress was harassment. The conduct has also to be calculated, in an
objective sense, to cause distress and has to be oppressive and unreasonable. It has to be
conduct which the perpetrator knows or ought to know amounts to harassment, and
conduct which a reasonable person would think amounted to harassment. What amounts
to harassment is, as Lord Phillips said, generally understood. Such general understanding
would not lead to a conclusion that all forms of conduct, however reasonable, would
amount to harassment simply because they cause distress.”
24. In the House of Lords, Lord Nicholls said, at paragraph 30:
“Where... the quality of the conduct said to constitute harassment is being examined, courts
will have in mind that irritations, annoyances, even a measure of upset, arise at times in
everybody’s day-to-day dealings with other people. Courts are well able to recognise the
boundary between conduct which is unattractive, even unreasonable, and conduct which is
oppressive and unacceptable. To cross the boundary from the regrettable to the
unacceptable the gravity of the misconduct must be of an order which would sustain
criminal liability under section 2.”
25. Thus to constitute harassment within the meaning of the Act there must have been conduct:
(i)
occurring on at least two occasions;
(ii)
targeted at the claimant;
(iii) calculated in an objective sense (i.e. likely) to cause alarm or distress; and
(iv) which is objectively judged to be oppressive and unacceptable, as opposed to merely
unattractive or unreasonable (so that it would generally be understood to be harassment).
(See Green v DB at paragraph 14).
Vicarious liability
26. The House of Lords in Majrowski held that an employer will be vicariously liable for an
employee’s breach of statutory duty committed “in the course of employment” unless the
legislation in question expressly or impliedly indicates otherwise. Applying this to the 1997 Act,
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the House held that the Act’s wording indicated that Parliament intended vicarious liability to
apply under the Act.
27. In order for the employee to have acted “in the course of employment”, the conduct must be so
closely connected with the acts the employee is authorised to do that the wrongful conduct may
fairly and properly be regarded as done by the employee while acting in the course of
employment: Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215. While the employment
enables the employee to be present at a particular time at a particular place, the opportunity of
being present at particular premises whereby the employee has been able to perform the act in
question does not mean that the act is necessarily within the scope of the employment. In order
to establish vicarious liability there must be some greater connection between the tortious act of
the employee and the circumstances of his employment than the mere opportunity to commit the
act which has been provided by the access to the premises which the employment has afforded
(per Lord Clyde at paragraph 45).
28. The Lister test for vicarious liability, whilst lower than the former common law test (whether act
“an improper mode of doing an act the employee was authorised to do”), may still be higher than
the test for secondary liability under the anti-discrimination legislation. Lord Clyde in Lister
stated at paragraph 44: “while consideration of the time at which and the place at which the
actings occurred will always be relevant, they may not be conclusive.
That an act was
committed outside the hours of employment may well point to it being outside the scope of the
employment.
But that the act was done during the hours of the employment does not
necessarily mean that it was done within the scope of the employment.”
29. Further guidance was given by the Privy Council in Bernard v Attorney General of Jamaica
[2004] UKPC 47, [2005] IRLR 398, where Lord Steyn stated at paragraph 19 that “an employer
ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the
type of business he carried on.” The Privy Council also endorsed McLachlin J’s observation in
th
Bazley v Curry (1999) 174 DLR (4 ) 45 that: “The policy purposes underlying the imposition of
vicarious liability on employers are served only where the wrong is so connected with the
employment that it can be said that the employer has introduced the risk of the wrong (and is
thereby fairly and usefully charged with its management and minimisation). The question is
whether there is a connection or nexus between the employment enterprise and that wrong that
justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation
of the consequences of the risk and / or deterrence.” This is, of course, hardly clear guidance.
But, as Lord Nicholls remarked in Dubai Aluminium Co Ltd v Salaam [2003] IRLR 608, HL, “this
lack of precision is inevitable, given the infinite range of circumstances where the issue arises.”
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30. The House of Lords’ decision in Majrowski came as a surprise to many.
The 1997 Act’s
principal aim at the time of enactment was to target stalking. Few people could have foreseen
that the Act would render employers liable for workplace harassment by their employees.
The 1997 Act: comment
31. The 1997 Act is very broad in its application to employers, in particular in the following respects.
(Several of these points are illustrated by the facts in Majrowski itself).
(i)
Contrary to the position in the anti-discrimination legislation, it is not necessary for a
claimant relying on the 1997 to show that harassment took place on a prohibited ground
(i.e. sex, race, etc.).
(ii)
Since the principle of vicarious liability applies to civil claims under the 1997 Act, a
blameless employer is liable for harassment committed by his employee in the course of
employment. This is, of course, a universal characteristic of vicarious liability, but it is still
remarkable.
There is no equivalent in tort law to the “employer’s defence” (described
above) in the anti-discrimination legislation. So, no matter what steps an employer may
take to prevent harassment in its workplace, if harassment nonetheless takes place, the
employer may find itself liable.
(iii) The limitation period for claims under the Act is six years, in contrast to the three-month
time limits applicable under the anti-discrimination legislation. This may be particularly
problematic for employers when claims are put forward for the first time years after the
alleged harassment is said to have occurred, in which case the alleged perpetrator may no
longer be with the employer and may not be traceable.
(iv) Unlike the common law of negligence, liability under the 1997 Act does not rely on harm to
5
the claimant being foreseeable. (For the position in negligence see below).
(v) Whereas the common law of negligence awards damages only where the claimant has
suffered financial loss or personal injury (including psychiatric harm), the 1997 Act provides
for the award of damages for mere anxiety: s.3(2).
5
However, this point should be qualified by recognition that damages which are not reasonably foreseeable may
be too remote to be recovered. In actions for negligence only reasonably foreseeable losses are recoverable:
The Wagon Mound [1961] AC 388, PC. It would seem that this concept should apply to most torts. However, in
deceit the wrongdoer is liable for all direct consequences, whether foreseeable or not: Doyle v Olby
(Ironmongers) Ltd [1969] 2 QB 158, CA. In Smith New Court v Scrimegour Vickers [1997] AC 254 at 279–280,
per Lord Steyn, it was suggested that the principle in Doyle v Olby (Ironmongers) Ltd applies to all intentional
torts. Statutory harassment is arguably an intentional tort. It is therefore not certain whether damages must be
foreseeable if they are to be recovered under the 1997 Act.
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32. The decision in Majrowski was widely anticipated to precipitate large numbers of claims under
the 1997 Act.
In the event it has not (possibly because potential claimants have been
discouraged by the costs regime in the High Court and county courts). However, employers
must bear in mind the risk of being found liable under the 1997 Act. The only effective way to
avoid such liability is to ensure that harassment is eliminated from the workplace.
(iii)
Common law negligence
33. An employer owes its employees a duty of care under the law of negligence. (The duty is
derived from the relationship of proximity between employers and employees.
It exists
simultaneously with employers’ contractual duties towards their employees). The duty requires
the employer to take reasonable care for the safety of its staff. An employer’s failure to prevent
staff bullying can amount to a breach of the duty of care: see e.g. Waters v Commissioner of
Police of the Metropolis [2000] ICR 1064, HL.
34. A successful claim in negligence requires the following elements to be made out:
(i)
injury to the employee must have been reasonably foreseeable;
(ii)
the employer must have breached the duty of care;
(iii) the employee must have suffered an injury; and
(iv) the employee’s injury must have been caused by the employer’s breach.
35. It is convenient to deal in turn with which each of these elements before dealing separately with
employers’ vicarious liability for bullying conducted by their employees.
Duty arises only if injury reasonably foreseeable
36. The High Court in Green v DB held at paragraph 10 that determining whether the employer is
negligent requires asking the following questions:
(i)
did the claimant’s managers and / or members of the HR department know or ought they
reasonably to have known that the claimant was being subjected to the conduct complained
of;
(ii)
did they or ought they reasonably to have known that such steps might cause the claimant
psychiatric injury;
(iii) could they, by the exercise of reasonable care, have taken steps which might have avoided
such injury?
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37. An employer is therefore only under a positive duty to take steps to prevent potentially harmful
workplace bullying once he knows or ought reasonably to know that such bullying is taking
place. Where a victim of bullying complains to his employer about the bullying, or where the
victim does not complain but the employer knows or ought to know by other means that the
bullying is taking place, the employer must take reasonable steps to prevent the bullying.
However, where the employer is unaware and has no reason to be aware that bullying is taking
place he cannot be under any duty to take steps to prevent it: Banks v Ablex Ltd [2005] ICR
819, CA.
38. Even if the employer is aware that some bullying is taking place, it will not be obliged by the law
of negligence to take steps to protect the victim unless it foresees or could be expected to
foresee that the bullying gives rise to a risk of physical or psychiatric injury. An employer is
entitled to assume that its employees are reasonably robust (see Sutherland v Hatton [2002]
ICR 613, which dealt with stress rather than bullying at work, but whose general principles
should be applicable to bullying cases). Therefore the employer’s duty to take action should not
be triggered by isolated, petty incidents of workplace conflict (Clark v Chief Constable of Essex
Police [2006] EWHC 2290 (QB), applying Hatton in a bullying context). As Lord Hutton stated in
Waters v Commissioner of Police of the Metropolis [2000] ICR 1064, “an employee may have to
accept some degree of unpleasantness from fellow workers.”
39. Of course, if the employer has any reason to believe that a possible victim of bullying is not of
average robustness then this will affect whether injury is foreseeable. In Barlow v Borough of
Broxbourne [2003] EWHC 50 (QB) the High Court accepted the employer’s evidence that the
claimant had always appeared unflappable, and that it had been shocked by his subsequent
breakdown.
The Court concluded that the claimant’s breakdown was not reasonably
foreseeable.
By contrast in Green v DB the employer was aware that the claimant had
previously suffered from depression and had been prescribed anti-depressant medication. It
therefore should have been aware that she was vulnerable, and once it learned that she was
being bullied there was a foreseeable risk of psychiatric injury.
Breach of duty
40. Whether the employer breached its duty of care will depend on whether it failed to take
reasonable steps to protect the claimant from his fellow employees’ bullying behaviour.
In
deciding whether any particular step is reasonable in the circumstances, a court will take into
account:
(i)
the magnitude of the risk of harm occurring;
(ii)
the gravity of the harm which may occur;
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(iii) the cost of the proposed step; and
(iv) the likelihood of the proposed step preventing harm.
(See by analogy Hatton).
41. Whether the employer has breached its duty of care will, of course, raise questions similar to the
questions raised by the “employer’s defence” in claims under the anti-discrimination legislation.
The sorts of steps which an employer could be expected to take when it learns of workplace
bullying are: making it clear to perpetrators that bullying is unacceptable (Green v DB); taking
disciplinary action against persistent offenders (Green v DB); moving bullies to a different
department or location from the victim (Green v DB); offering counselling services to the victim
(Hatton); and enforcing a strict bullying policy.
Injury
42. Damages for negligence may be recovered only if the victim has suffered a physical or
psychiatric injury.
No damages are recoverable for mere stress or injury to feelings.
In
determining whether the claimant has a psychiatric injury the court will ask whether he or she
has a psychiatric disorder which is recognised by one of the main diagnostic classificatory
systems used by the psychiatric profession. The two main systems are DSM-IV (the American
th
Diagnostic and Statistical Manual of Mental Disorders, 4 edn, 1995) and ICD-10 (the World
th
Health Organisation’s International Classification of Diseases and Related Health Problems, 10
Revision, Vol.1, 1993).
Causation
43. The claimant must show that the employer’s breach caused or materially contributed to his or
her injury.
44. Establishing the cause of psychiatric injury is often difficult. In practice many cases involving
psychiatric injury are brought by vulnerable claimants with a history of mental illness. This
makes it particularly difficult to disentangle the employer’s breach of duty from other potential
causes of the injury, such as domestic difficulties or health problems. The courts therefore rely
heavily on expert evidence when assessing the causes of psychiatric injury.
Vicarious liability for bullying by employees
45. Recently the courts appear to have accepted that colleagues at work may owe one another a
duty of care which may be breached by bullying. It follows that an employer, as well as being
personally liable for failing to take reasonable steps to deal with bullying, may also find itself
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vicariously liable in negligence for bullying conducted by its employees, even if it has not itself
been in breach of duty.
46. Liability in such circumstances was not recognised by the courts until quite recently. Indeed, in
Waters v Commissioner of Police of the Metropolis [2000] ICR 1064, where the claimant alleged
that she had been subjected to victimisation and harassment by colleagues, Lord Hutton said:
“a person employed under an ordinary contract of employment can have a valid cause of action
in negligence against her employer if the employer fails to protect her against victimisation and
harassment which causes physical or psychiatric injury. This duty arises both under the contract
of employment and under the common law principles of negligence... [However] the employer
will not be liable unless he knows or ought to know that the harassment is taking place and fails
to take reasonable steps to prevent it” (1073-1074, emphasis added). This dictum appeared to
envisage neither personal nor vicarious liability on an employer’s behalf where there is no failure
by the employer to take reasonable steps.
47. However, the High Court in Barlow v Broxbourne and in Green v DB has now accepted that
bullying may amount to negligence on the part of colleagues, for which employers may be
vicariously liable. In both cases the relevant issues were formulated as follows:
(i)
whether the claimant has established that the conduct complained of in the particulars of
claim took place and, if so, whether it amounted to bullying or harassment in the ordinary
connotation of those terms. In addressing this question it is the cumulative effect of the
conduct which has to be considered rather than the individual incidents relied on;
(ii)
did the person or persons involved in the victimisation or bullying know, or ought they
reasonably to have known, that their conduct might cause the claimant harm;
(iii) could they, by the exercise of reasonable care, have taken steps which would have avoided
that harm; and
(iv) were their actions so connected with their employment as to render the defendant
vicariously responsible for them.
(See Barlow v Broxbourne at paragraph 16; and Green v DB at paragraph 9).
48. Not only under the Protection from Harassment Act 1997 but also in negligence, therefore,
employers may find themselves vicariously liable for bullying which has taken place entirely
without their knowledge. The test for vicarious liability in negligence is the same as that under
the 1997 Act (the Lister test; see above at paragraph 27 ff).
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(iv)
Breach of contract
49. Three terms which are generally implied in contracts of employment are likely to be relied upon
by victims of bullying:
(i)
that the employer shall not, without reasonable and proper cause, conduct itself in a
manner calculated or likely to destroy or seriously damage the relationship of trust and
confidence between employer and employee (Malik v BCCI SA [1997] ICR 606, HL);
(ii)
that the employer shall take such steps as are reasonable to support the employee in his or
her duties without harassment or disruption from colleagues (Wigan BC v Davies [1979]
ICR 411, EAT); and
(iii) that the employer shall take reasonable steps to protect the employee’s safety at work
(British Aircraft Corporation Ltd v Austin [1978] IRLR 332, EAT; applied in the context of
physical bullying of which the employer was aware but which the employer took no steps to
prevent in Evans v Sawley Packaging Co Ltd COIT 2916/185 E).
50. The first of these three terms – the duty of trust and confidence – is the widest in scope and
therefore the one most commonly relied upon by claimants.
51. As with claims in negligence, a crucial consideration in asking whether the employer has
breached any of these duties is its degree of knowledge. Whether or not the employer was (or
should have been) aware of any bullying taking place is an essential consideration when asking
what steps it is reasonable to expect the employer to take.
Hence in Davies, where the
employer had known that there was a great deal of antipathy between the claimant and her
colleagues following conversations with the claimant, but had failed to take any steps to prevent
trouble which had been foreseen, the EAT found that the employer had breached the implied
term that it would take such steps as were reasonable to support the employee in his duties
without harassment or disruption from colleagues.
52. In addition to these implied terms, the employer may be under an express contractual obligation
to investigate complaints of bullying.
53. If an employer fundamentally breaches the employment contract of a victim of bullying then the
victim will be entitled to resign and claim that he has been constructively dismissed. He will then
be entitled to damages for wrongful dismissal (i.e. damages in respect of his contractual notice
period for breach of contract); and will also probably have a good claim for unfair dismissal.
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(v)
Unfair dismissal
54. In practice, if an employee is constructively dismissed then he will almost invariably have a good
claim for unfair dismissal.
B. GREEN V DB: A CAUTIONARY TALE
55. The High Court’s decision in Green v DB helpfully illustrates a number of the legal principles
applicable to workplace bullying. It should serve as a cautionary tale for employers, not only
because of the level of damages awarded to the claimant, but also because it demonstrates the
variety of grounds on which employers may find themselves liable for workplace bullying.
Facts
56. Helen Green (‘G’) worked at DB as a company secretary assistant between 1997 and 2001.
During her interview process she informed the bank that she had previously been treated for
depression. From joining the bank until mid-1998 she was subjected to daily childish, hostile
and inappropriate behaviour by four female colleagues.
This had involved ignoring her,
excluding her from conversations and group activities, bursting out laughing whenever she
walked past them, removing papers from her desk, hiding her post, conducting loud
conversations close to her chair when she was on the telephone and making abusive remarks in
reference to her, such as “What’s that stink in here?”
G raised these problems with her
manager and the HR department. They appeared concerned. They told her to try to ignore the
problems but did not take any further steps.
57. The bullying more or less ceased in mid-1998 when three of the four women left the department.
However, by that time G had started to experience difficulties with a male colleague (‘P’). P
conducted a sustained campaign against G in an attempt to raise his own profile as against
hers. He attempted to take over her work, undermined and humiliated her, and gave those
outside the company the impression that he was her boss. G again informed her manager and
the HR department what was going on. The manager spoke to P and told him to stop interfering
with G’s work, but no formal steps were taken to ensure that he did so. The bank also agreed to
send G on assertiveness training; it sent P, along with the rest of the department, on
harassment training; and it referred G for stress counselling.
58. In November 2000 G was hospitalised for a breakdown so severe that she was initially placed
on suicide watch. She developed a depressive illness. She returned to work in March 2001 but
suffered a second breakdown in October 2001 and never returned to work with the bank.
59. G subsequently commenced proceedings against the bank claiming that her psychiatric injury,
and consequential loss and damage, were the result of bullying by the four female colleagues
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and P.
She claimed that the bank was vicariously liable in negligence for the colleagues
bullying; that the bank was personally liable in negligence for failing to take adequate steps to
protect her from the bullying; and that the bank was vicariously liable for the colleagues’ breach
of the Protection from Harassment Act 1997.
Decision
60. Owen J ruled in G’s favour and awarded her damages of £850,000 plus her legal costs.
61. As to vicarious liability in negligence, Owen J applied the test from Barlow v Broxbourne set out
above (at paragraph 47).
He found, first, that the colleagues’ behaviour amounted to a
deliberate and concerted campaign of bullying within the normal meaning of that term. Whilst
many of the incidents when viewed individually would have amounted to no more than minor
slights, it was their cumulative effect which needed to be considered. Secondly, the bullying
gave rise to a foreseeable risk of psychiatric injury. Such behaviour when pursued relentlessly
on a daily basis has a cumulative effect.
It is designed to make the working environment
intolerable for the victim. The stress that it creates goes far beyond that normally to be expected
in the workplace. It is plainly foreseeable that some individuals will not be able to withstand
such stress and will in consequence suffer some degree of psychiatric injury. Thirdly, on the
basis of the expert medical evidence, Owen J concluded that G’s two breakdowns were caused
by the bullying. Finally, the bank was vicariously liable because the bullying took place in the
course of the bullies’ employment. Whilst the women worked in close physical proximity to G,
they were in a different department from her. The bank submitted that their behaviour had
nothing to do with either their work or hers, and that their employment simply provided the
opportunity for them to behave in the way that they did. Owen J rejected that submission,
holding that the women’s behaviour was closely connected with their employment because it
directly affected the working environment within G’s department, and because some of the
bullying (e.g. hiding mail) involved work that one or other of the women were required to
undertake in the course of their employment. In the case of P it was more obvious that the bank
should be vicariously liable: P’s conduct was directly and intimately connected with the work
which he was engaged to perform.
62. Owen J also held that the bank was personally in breach of its duty of care to G in failing to take
any or any adequate steps to protect her from her colleagues’ behaviour. Applying the test set
out at paragraph 36 above he held that G’s managers knew or ought to have known what was
going on. A reasonable and responsible employer would have intervened as soon as it became
aware of the problem.
There were obvious steps that could have been taken to stop the
bullying, such as: investigating the alleged bullying; making clear that such behaviour was
unacceptable; warning perpetrators that if they persisted, disciplinary action would follow; and, if
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necessary, moving perpetrators to a different department or a different location. The bank had
failed to take any of these steps. Owen J concluded: “In short the management was weak and
ineffectual” (paragraph 102). Further, the risk of psychiatric injury was particularly foreseeable
from the bank’s perspective, because it was aware that G had suffered from depression in the
relatively recent past.
63. The Court was also satisfied that the behaviour of both the women and P amounted to
harassment under the 1997 Act. In each case there was a course of behaviour which was
targeted at G and calculated to cause her distress, and the behaviour was oppressive and
unreasonable.
64. G’s damages award consisted of £35,000 general damages for her depressive illness, four
years out of work and increased vulnerability to depressive disorders; £25,000 for disadvantage
on the labour market; £128,000 for lost salary and bonuses; and £640,000 for future loss of
earnings, pension and other benefits.
Comment
65. Several aspects of the decision in Green v DB are particularly notable.
66. First, this appears to be the first significant award for bullying by peers or junior colleagues as
opposed to the more typical case of line management abusing its powers. It is now quite clear
that, under both the Protection from Harassment Act 1997 and the law of negligence, employers
may find themselves liable for bullying by junior colleagues.
67. Secondly, whilst the instances of bullying may have seemed trivial when viewed individually, the
Court focused on their cumulative effect. An employer might be forgiven for not taking seriously
an allegation that colleagues are conducting loud conversations close to a complainant’s chair
when she is on the telephone. Childish remarks such as “What’s that stink in here?” might be
dismissed as mere office banter. However, employers must be astute to the possibility that such
behaviour is part of a course of conduct whose cumulative effect may be serious.
68. Thirdly, employers cannot escape liability by taking a few token steps to deal with bullying. In
Green v DB, the bank did eventually take some action to deal with the situation. It provided
harassment training for its staff, referred G for stress counselling and paid for assertiveness
training for G. But that was too little and too late. The bank failed to take reasonable steps by
failing to investigate the bullying; to make clear that such behaviour was unacceptable; to
threaten disciplinary action; and to move perpetrators to different locations. However, even if
such steps had been taken, if they had failed to prevent G’s injury the bank would still have been
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vicariously liable for the bullying. Therefore the only sure way to avoid liability for bullying is to
eradicate bullying from the workplace.
69. Fourthly, the sheer size of the award is a wake-up call for employers. The size of the award did
not result from G being an unusually high earner; her annual salary in 2001 was £45,000.
Rather, it followed principally from the long-lasting impact which the Court expected the bullying
to have on her future career.
C. CONCLUSION: TIPS FOR AVOIDING LIABILITY
70. Bullying in the workplace appears to be quite widespread. There is a range of legal remedies
available to the victims of such behaviour. The only sure way for employers to avoid liability is
to eradicate bullying.
Employers can also avoid particular types of liability by taking all
reasonable steps to stamp out bullying. The kinds of steps which employers should take are as
follows.
(i)
Adopt a written policy which makes it clear that bullying and harassment will not be
tolerated and that perpetrators will be subjected to disciplinary action.
Ensure that
employees are aware of the policy and that it has management backing.
(ii)
Consider training both managers who are responsible for applying the bullying policy and
members of staff generally. General staff training should describe the kinds of behaviour
which will not be tolerated and the damaging consequences of bullying.
(iii) Consider providing confidential employee support helplines and counselling for victims.
(iv) Investigate swiftly any allegations of bullying, regardless of whether the allegations are
raised in a formal written grievance.
(v) Apply disciplinary sanctions to those found guilty of bullying.
(vi) When entering into compromise agreements at the termination of an employee’s
employment ensure that the agreement provides for waiver by the employee of any right to
bring claims for breach of contract or negligence or under the Protection from Harassment
Act 1997.
October 2007
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