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
COPYRIGHT
Meera Yagnik completed her pupillage at 5-12 St Andrews Hill, London.
Meera is presently a barrister at Temple Court Chambers specializing in
all commercial and employment law related matters.She has extensive
litigation experience before the Commercial Courts,Employment Tribunal
and
Appeal Tribunal. She also lectures on a part time basis for the ICSA
Corporate Secretaryship qualification.She has also provided lectures at
solicitors offices on Corporate Governance under the Companies Act 2006
and Employment matters.
Meera has also provided advice and assistance to various
insurance, local authorities and solicitors firms on Employment, Human
Resources and Commercial matters.
» left by anonymous from US (1 year 142 days 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 (1 year 139 days ago.)
know exactly what to do if bullied at work, hope it never happens. thanks for the info.
» left by PAULA JENKINS from LIVERPOOL (1 year 48 days 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.
Disclaimer: All information on this site is provided for informational purposes only! By no means is any
information presented herein intended to substitute for the advice provided to you by any health care or other professional
or organization.
tweet this!
