Are You Being Bullied or Harassed At Work? If So, What Protection Do You Have?
Posted: Thursday, June 12, 2008
by Meera Yagnik
Temple Court Chambers
Why have we not incorporated a Dignity at work Policy within the Employment Relations Act, in order to put bullying and harassment on a statutory footing in order to protect employees?
There was a survey published whereby it was stated that 3.8 per cent of employees had personally at some point in their working lives experienced bullying or harassment at work in the past two years. Further more than one in ten employees stated that they were aware that a person that they knew was being bullied and or harassed at work. Women were more likely to be bullied than men. Finally, bullying and harassment is twice as high in the public sector then the private sector. Given these facts why did the government shy away from the opportunity to incorporate the Dignity at Work Policy within the Employment Rights Act 2006?
In the legal context we have what is known to be the common law duty of care. There is an implied term in all employment contracts that "the employer shall render reasonable support to an employee to ensure that the employee can carry out duties of his job without harassment and disruption by fellow workers". So an employee who suffers at work can resign as a result and then claim constructive dismissal. The burden of proof lies with the employee to prove that the only option available to the employee was to resign. However, the caveat to this is that an employee who does not have continuous employment of one year or more does not have constructive dismissal protection. The only recourse would be to base a claim on breach of contract.
The Health and Safety Act 1974 also provides employees with protection from an unsafe working environment as a result of bullying at work, as, the employer is effectively responsible for providing a safe and healthy work environment for employees and thus are responsible for the employee' psychological welfare.
Employers may also be found to be vicariously liable for negligent acts or omissions by their employees in the course of their employment irrespective of whether the act of the employee was authorised by the employer. The case of Majrowski has clearly stated that employer's vicarious liability applies to bullying and harassment.
There is also the protection offered from the Protection from Harassment Act 1997 that stipulates that: An employer can be liable for the consequences of any harassment committed by an employee in the course of his employment. However, a single incidence of bullying or harassment will not contravene the Act as there has to be an offending "course of conduct" and it must involve conduct on at least two occasions. An important aspect of harassment is that it does not have to be intentional to be judged as harassment, so all that has to be proved is that a person took offence to a particular act. The time limitation period for a harassment claim is 6 years compared to 3 months for a discrimination claim.
The only other options available to an employee are by looking at any claim based upon discrimination. The New Employment Equality (Age) Regulations 2006 that came into force in October 2006 prohibit unjustified direct and indirect age discrimination. The regulations also prohibit all harassment and victimisation on grounds of age (young or old). There is also a prohibition placed upon disability discrimination under the DDA 1995, Gender, Race, Religion or Belief, and sexual orientation.
The Human Rights Act 1998 also prohibits inhuman and degrading treatment under article 3. Employers can be held liable if they fail to offer employees protection against bullying and harassment pursuant to the Equality legislation. Article 8 (1) also provides protections for a persons private life, and, thus may be able to bring a claim under this section if they experience harassment as a direct result of their sexual orientation. The important thing to remember about the Human Rights Act is that employees have no rights to bring individual claims unless they work with the definition of a public authority. Convention rights are not directly enforceable against private employers.
Direct discrimination occurs when a person "treats another less favourably than he treats or would treat "another person (a women or a person from a different racial group). Discrimination claim is based upon the comparator principle. So it will be pivoted around the hypothetical fellow employee who is in same position as the applicant, but who is of a different gender or race etc. This means that a person will have to prove that they have been harassed in breach of the statutory legislation and prove that it is a direct result of their sex, age disability etc. Applicants will have to establish that they belong to one of these categories and if claiming direct discrimination, that they were discriminated because they fell into that category.
So what can be done? We need to incorporate a Dignity at Work Act, which, would act as an anti harassment and bullying legislation. It will put on a statutory footing the right for an employee to make a claim at the employment tribunal if they are the recipients of bullying and or harassment at work. As with any policy, the effectiveness is mainly due to what protection and remedies there are in law to protect employees. Once it becomes a statutory right it will enable the employees to obtain protection from this sort of conduct at the tribunal. It will also act as a signal to employers to have procedures in place to monitor abuse of authority by managers, and, protect employees who are the victims of bullying and or harassment at work by other employees.
Meera Yagnik
Barrister
Temple Court Chambers
COPYRIGHT
This Article has been viewed 8,798 times. (Not updated in real-time.)
Top-level comments on this article: (7 total)I am thankful not to have ever been in a place where I've had to worry about this. This is good information for someone having to deal with a bully.
know exactly what to do if bullied at work, hope it never happens. thanks for the info.
YES BUT THE BULLIES WIN - NOBODY WILL WITNESS FOR YOU - YOU ARE ON YOUR OWN, NO WITNESS, NO BULLYING - SIMPLE AS THAT, MY SITUATION HAS BEEN ONGOING SINCE FEBRUARY 2006, I REPORTED BULLYING WITHIN THE HR DEPT (NHS) WHICH OF COURSE WAS NOT UPHELD, AND NOW I AM BEING BULLIED AGAIN IN RETALIATION WHILST WAITING TO BE REDEPLOYED, NOW OFF SICK AGAIN!!!!! BULLIES STILL HAVE THEIR JOBS, BUT MAYBE NOT THEIR CONSCIENCE. ITS A DISGRACE, EVERYONE KNOWS BUT NOBODY WILL SPEAK UP FOR FEAR OF REPRISAL.
Never ever believe that HR are on your side. Everything that is written down, mentioned in any disciplinary, or any witness statement given will be relayed from the HR department straight back to you boss.HR are there to protect the company not the individual. That is why grievances are rarely upheld. They will always turn anything against the complainant, will provide false witness statements provided by the physcophants in the office. After all no one wants to lose their jobs or any bonus. Employers will often use appraisals to curb any complaints. There in no justice in todays workplace. NEVER EVER TRUST THE HR DEPARTMENT THEY DO NOT WORK FOR YOU THEY ARE EMPLOYED BY THE COMPANYGreat advice! You're right! They do attack you on your review! That's exactly what happened to me!
Yes, this was extremely helpful. I work for a public authority and I feel as though I am being harrassed. I hear my co workers and supervisors telling clients that I am ugly. This has gone on since I started working for this facility. Everyday that I come into the office I am experiencing these disgusting comments. Also, today I hear a co worker tell a client that I'm gay. I'm not gay, but my sexual prefrence should not be the concern of our clients. Some part of me wonders if I have a case based on health and safety act 1974, discrimination, or human resource act 1998. What do you think and how do I prove this is happening? Would I be wrong to hire a private detective?
yes it was helpfull thank you.
being bullied is severely effecting me in a way that makes me lose concentration at work and later on in light traffic on the way home,but still as a crane operator i need concentration on the job and on the way home and not to lose sleep over the days events.
I am being bullied at work for the past three years. I have gone to upper mangement and to the HR department. everyone who works here have heard or have seen the bulling. Nothing has been done about this. Just a few days ago at work this bully latched out to me for no reason at all. next i walked out to my car to leave later that afternoon and my new car had been keyed all the way down the passanger side of my car. HR and other management have done nothing to prove this lady did it. so i am on my own to work threw this proplem. this really sucks to be bullied.
We want your comments! If you can read this, you don't have javascript enabled, so you can't use this comment system. Please enable javascript.