Risks of Ignoring Bullying and Harassment Complaints Hilary Beaumont & Sean McCarthy

PROGRAMME Bullying & harassment – definitions Statistics Vicarious Liability Cost to employers Where do claims go? What should you do next? Today we hope to cover:-

What is harassment and bullying? An abuse of power Chambers Dictionary definitions  Bully – “a cruel oppressor of the weak…..a ruffian hired to beat or intimidate anyone.”  To harass “ to distress, wear out, annoy, pester.”

Definition of harassment Harassment – discrimination law specifies it as a form of discrimination. There is no justifiable defence for an act of harassment. Harassment - behaviour is unwanted and the unwanted behaviour affects or has the purpose of violating dignity creating an intimidating, hostile, degrading environment. Harassment is occurs whether the intention to harass succeeds or not and whether or not the person meant it. It can be one single act or a series of events. ACAS defines harassment as “ unwanted conduct affecting the dignity of men and women in the work place. It may be related to age, sex, race, disability, religion, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient.”

Definition of bullying “Offensive behaviour through vindictive, cruel, malicious or humiliating attempts to undermine an individual or group of employees” ( Andrea Adams, Andrea Adams Trust.) It is not possible to make a complaint direct to a tribunal about bullying but a person can raise their complaint under some other guise e.g. discrimination and harassment.

ACAS Examples Spreading malicious rumours or insulting behaviour Circulating critical literature Ridiculing or demeaning someone Exclusion or victimisation Unfair treatment Over bearing supervision or misuse of power or position Unwelcome advances – touching, standing too close, display of offensive materials Making threats/ comments about job security without foundation Deliberate undermining of a competent worker by overloading and constant criticism Blocking deliberately promotion/ training opportunities

Statistics 70% of HR professionals have witnessed or have been aware of bullying in their organisation More than half (59%) said they had specific policies and procedures in place (96%) of organisations offer managers training on how to deal with cases of bullying. Nearly two-thirds (62%) have come across incidences of verbal abuse and 5% physical abuse million working days are lost to bullying and up to a half of all stress- related illnesses are a direct result of bullying. Approximately 1.8% of salary budgets is paid to be people off with stress- related illness as a result of bullying. 1 in 4 people report that they have been bullied in the last 5 years. More than 2 million people at work consider themselves as being bullied

Vicarious Liability Employees are personally liable for wrongful acts they commit in the course of their employment which cause injury or damage to a third party Employer may also be vicariously liable to compensate the third party  they created the situation in which the employee caused harm or injury  they are more likely to have financial resources to compensate the third party If employer has a policy, is clear about standards of behaviour, offers training etc = a defence against liability as tried to prevent such an incident occurring

Cost of Bullying & Harassment Cost to the individual  Health  Productivity  Self esteem  Loss of career or livelihood  Home life or relationship difficulties  Suicide

Cost of Bullying & Harassment Cost to the employer  Bully is not doing his/her job properly  Bully is stopping the other person(s) doing their job properly  Negative stress, leading to increased absence rates from affected employees (not just the bully and the victim)  Replacement costs – losing a valued employee (total costs can reach 3x salary)  Bad publicity/reputation

Cost of Bullying & Harassment Legal costs  Investigation/grievances will cost at least £1000.  Employment Tribunal costs will be minimum £10k and are more usually about £30-50k if a barrister is involved  ET awards may be over a £1m if discrimination is also involved  County Court action could cost £100k and take 3 years  High Court action costs up to £1m and takes up to 5 years  House of Lords costs will be an extra £100k (for ECJ add another million)  People are side-tracked from doing their job by these hearings.  Even if you win, it will still cost.

CLAIMS - 1 Liabilities under discrimination law Unlimited damages including payment of fines for injury to feelings – burden of proof on the employer to show that they do not discriminate as opposed to the employee to show that they did. Remember there can be multiple claims – this may become more prominent with the new Age Discriminations Regulations coming in October 2006 e.g. on grounds of race + sex+ age+ religious belief etc

CLAIMS - 2 Christopher Dunnachie v Hull City Council. Health and Safety at work Act 1974 Employers have a statutory duty of care to employees. Public Order Act - It could be an offence under the Act if there was an intent to cause harm and distress: this can result in a fine of up to £5000 and/or up to 6 months in prison.

Claims - 3 Protection from Harassment Act  This Act, originally introduced to deal with stalkers, provides redress under the civil and criminal law for acts of harassment. There are 2 criminal offences  low level up to 6 months imprisonment  high level up to 5 years imprisonment. Key case on this William Majrowski v Guy and St Thomas’ NHS Trust – Court of Appeal decision allows for a civil remedy and provides for damages for anxiety that falls short of injury to health.

Claims - 4 Contractual issues An implied term to provide a safe working environment. If the employee considers that the employer allowed bullying and harassment to occur or didn’t deal with it – can claim that this was a breach of contract, failure to maintain trust and confidence and possibly claim constructive dismissal. Steven Horkulak v Cantor Fitzgerald International

What next Recruit the right people Have a clear harassment and Bullying policy Make everyone aware of the policy and their rights and responsibilities (including training) Stick to the policy and deal with complaints quickly Don’t accept bullying/harassment as “management robustness” Provide support to employees (mediation, counselling or colleague support) Be confident enough to dismiss the bully/harasser.