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?
One of the arguments that were put forward against the Act was that there are other provisions available to protect employees that have been bullied and harassed at work. Organisations can incorporate an equal opportunities and anti harassment policy, which, explicitly prohibits bullying and harassment and makes it a dismissible offence under their statutory and disciplinary procedures. The most important point here is that not all organisations do this as there is no statutory obligation for them to do so. The fact that an option may be available in reality means that if people can avoid it they will.
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
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» left by anonymous from US (172 days 2 hours ago.)
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. Respond to this comment
» left by Mark from London (169 days 11 hours ago.)
know exactly what to do if bullied at work, hope it never happens. thanks for the info.
» left by PAULA JENKINS from LIVERPOOL (78 days 9 hours ago.)
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.
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