Beating bullying at work: the employer's duty of care
Gillian Howard provides advice on managing workplace bullying.
Q: I work in occupational health for a large City firm where bullying is endemic. A senior female employee has recently complained that for months she has been the butt of sexist and lewd jokes. She said that the comments have concerned her sex life (she has had four husbands and is due to marry her fifth) and that some of the traders have asked her for sex. In addition, she has been sent nude and sexually explicit photos with a picture of her head cut and pasted onto the body. These pictures have been emailed to her staff and others in the firm and pinned up on an office notice board. She said that her life is becoming intolerable but she is scared to complain to her boss, who is the head of global capital markets, because she fears that her career will be damaged or destroyed and that she will not receive a decent bonus. What is the employer's legal position and my ethical position as she has asked me to keep this strictly confidential?
A: The straightforward answer to the issue of confidentiality in this case is that, as an OH physician or nurse, you are bound to keep the employee's complaint strictly confidential1. You should document every detail of her complaint, and sign and date the record. Whether the employee has had one or five husbands, there can be no question that the conduct being reported is excusable. You should encourage her to report her complaint to HR as the firm should have an anti-bullying policy that supports and protects victims of bullying. HR will take responsibility for progressing the matter out of the employee's hands. Victims of bullying often feel deeply guilty and responsible for any disciplinary action taken against the perpetrators of the misconduct; it is for the employer to take that responsibility away from the victim.
Once the employee has reported this conduct to HR, ie that there has been a breach of the employer's duty under the Sex Discrimination Act 1975 and its contractual and statutory duty to take reasonable care of her mental health, these disclosures will be a "protected" act under s.4 of the Sex Discrimination Act 1975 and a "protected disclosure" under s.43B of the Employment Rights Act 1996 (formerly the Public Interest Disclosure Act 1988).
Protection from Harassment Act 1997
In Green v DB Group Services (UK) Ltd2 the High Court held that a law to protect individuals from stalkers - the Protection from Harassment Act 1997 - may be used by employees who are subjected to a campaign of bullying at work. To constitute "harassment" under this Act, there must be at least two incidents of bullying where the individual is specifically targeted, and the conduct has to be calculated to cause distress and objectively judged to be "oppressive" and "unreasonable".
Ms Green was already within the "eggshell personality" category, having had a very troubled childhood and episodes of mental illness, including bulimia, before joining Deutsche Bank. During her employment (as company secretary) she was subjected to a campaign of bullying and harassment by, among others, a group of four women who worked in close proximity to her. The bullying involved ignoring her, bursting out laughing when she walked past, making crude and lewd remarks, removing papers from her desk, hiding her post, removing or omitting her name from internal circulation lists and internal records, and conducting loud conversations close to her desk making it difficult for her to make or receive telephone calls.
Ms Green complained about her fellow workers' conduct but the bank did nothing to stop it or to censure those about whom she had complained. Following an unsuccessful formal grievance, Ms Green suffered two episodes of depression and absences from work. After her second relapse, she was unable to return to work in any capacity.
Awarding £850,000 in damages, the High Court held that Ms Green's psychiatric injury resulted from harassment and bullying by her fellow employees for which her employer was vicariously liable. It held that the behaviour of the employees concerned occurred with great frequency, was targeted at her and was calculated to cause her distress. "On any view", they held, "the behaviour … was oppressive and unreasonable."
The definition of bullying
The NHS's bullying and harassment policy defines bullying as "offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient"3.
As in all cases of harassment or discrimination, there may be grey areas and different limits may be necessary depending on the personality of the individual. The employer must draw a line that nobody is allowed to cross.
Bullying can include a range of conduct, such as refusing to speak to a colleague and/or excluding them from meetings, deliberate withholding of information with the intention of affecting their performance, unfair and destructive criticism, intimidating behaviour, oral abuse and spreading of unfounded rumours, humiliation or ridicule, and the setting of targets that are unrealistic and/or changed with limited notice or consultation.
In Green, the High Court held that "those involved ought reasonably to have known that such a sustained campaign designed to undermine her confidence and to undermine her in the eyes of those with whom she had to have contact in the course of her work was likely to cause anxiety and depression, and that such anxiety and depression could be sufficiently serious to amount to a psychiatric illness."
Employer negligence
An employer that does little or nothing to stop the bullying may, in failing to take any adequate steps to protect the victim from their fellow employees' bullying behaviour, be in breach of its duty of care to the victim.
Whether or not alleged bullying and harassment gives rise to a potential liability in negligence on the part of the employer will depend on the following questions being satisfied:
Has the claimant established that the conduct complained of took place and, if so, did it amount to bullying or harassment in the ordinary connotation of those terms? (The courts look at the cumulative effect of the harassment or bullying rather than any individual incidents.)
Did those involved in the victimisation or bullying know, or ought they reasonably to have known, that their conduct might cause the victim harm?
Could the employer, by the exercise of reasonable care, have taken steps that would have avoided
that harm?
Were the bullies' actions so connected with their employment as to render their employer vicariously liable for them?
In Green's case, Ms Green was able to show that the behaviour of the individuals concerned was "a deliberate and concerted campaign of bullying". The judges said that there was no special meaning of the word "bullying"; they would give it its ordinary meaning. A reasonable and responsible employer would have intervened as soon as it became aware of the problem.
Employers should have a clear policy in place about how bullying in the organisation is viewed. They must make it clear that such behaviour is unacceptable and those responsible should be warned that, if they persist, severe disciplinary action will follow, which could include summary dismissal. The victim may be happy to be moved to a different location or department or the bully may be disciplined and moved, be demoted or have privileges removed. In some cases, the bully may be required to undergo psychological counselling, and close supervision may be necessary.
The role of occupational health
In some cases, employees who have been subjected to bullying will self-refer to OH practitioners. Records should be kept detailing the complaints made, the symptoms described and any dates and names given. It may be necessary for the OH nurse or physician to urge the victim to consent to the consultation being reported, in order to alert management that bullying is occurring.
Cognitive behavioural therapy may be helpful in assisting the victim to cope and to resist further episodes of bullying and in order for this conduct to be stopped and investigated.
1. It should be noted, however, that in extreme circumstances (eg, where a person's health and safety is at imminent and serious risk) your duty of confidentiality may be outweighed by a more onerous duty to disclose information. In such a case, you may, after consultation with other professional colleagues and your professional insurers, consider that your duty of confidentiality is overridden due to the very serious nature of the complaints that have been made to you.
2. [2006] IRLR 764.
