The terms ‘bullying’ and ‘harassment’ are often used interchangeably to describe hostile behaviour which harms, intimidates or humiliates someone. The impact on the individual of either is usually the same.
The effects of bullying at work can be wide-ranging, including stress and mental ill health amongst employees, bullying-related absences, staff turnover and lost productivity. Research undertaken by workplace dispute organisation ACAS in 2015 highlighted an estimated £18 billion annual loss to the economy resulting from bullying in workplace.
When it comes to claims that an employee is being mistreated at work, harassment has clear legal definitions, however, there is no such claim in law for bullying.
The Equality Act 2010 (EqA) is intended to protect people from discrimination in the workplace and it defines harassment as: “unwanted conduct related to a relevant protected characteristic” which has the “purpose of effect of violating an individual’s dignity or creating an intimidating hostile, degrading, humiliating or offensive environment” for that individual.
It can be seen that the EqA definition of harassment at work is therefore much narrower than the ordinary meaning of the word, as the unwanted conduct must be related to a protected characteristic for an employee to be able to make a claim. The relevant protected characteristics are:
- Gender reassignment
- Religion or belief
- Sexual orientation
For example, if an employee was being frequently teased and humiliated at work for being gay and colleagues continually made offensive and crude remarks, this could constitute sexual orientation harassment and could also be direct discrimination under the EqA.
The employee concerned could bring a claim in the Employment Tribunal against their employer, who may be liable for the acts of their employees (known as ‘vicarious liability’). To bring a claim for harassment, the employee does not have to actually have a protected characteristic if the conduct has the same “purpose or effect” and is “related to” a protected characteristic. It is enough for the employee to be associated with a person with a protected characteristic or because they are wrongly perceived to have one.
Where an Employment Tribunal finds that an employee has suffered discrimination or harassment, it can award compensation for:
- financial losses arising from the discriminatory act;
- injury to feelings; and
- personal injury.
Compensation for injury to feelings is awarded in line with three bands (known as the ‘Vento’ bands): lower, middle and upper – ascending in degrees of seriousness and regularity of the acts complained of. A recent case has, however, confirmed that even in cases of one-off harassment, compensation can fall into the middle band, not just the lower band.
The Tribunal can also award additional compensation known as ‘aggravated’ damages in certain situations.
Vento Bands for Injury to Feelings Awards (as at 6 April 2019):
Lower band – £900 to £8,800
Middle band – £8,800 to £26,300
Upper band – £26,300 to £44,000
If bullying at work was related to a protected characteristic, it might constitute harassment as set out above, or direct discrimination under the EqA. However, there are still a number of legal, financial and reputational issues that can flow from bullying in the workplace which is unrelated to a protected characteristic.
Employers have a duty to protect the mental and physical welfare of their employees and there are other avenues of establishing legal liability for bullying where it does not fall within the discrimination or harassment remit. However, employers will be wary of allegations of bullying or harassment where they are used in defence by an employee, for example where the employee has been placed on a performance improvement plan.
Before bringing any Tribunal claim, an employee will have been expected to have attempted to resolve the issue with the employer. The first step for any employee facing harassment or bullying should therefore be to use their employer’s policies and procedures, such as raising an informal or formal grievance prior to considering bringing a claim, whilst being mindful of time limitations to bring a claim. Limitation periods can be as little as three months (less one day) for most Tribunal claims. Additionally, an employee must notify ACAS and engage in their ‘Early Conciliation’ scheme to try and resolve the dispute before issuing Tribunal proceedings.
Other legal claims that can flow from bullying include:
Automatic unfair dismissal if the employee is dismissed for alleging that the employer had infringed their statutory right, such as an employee’s right to have their safety and welfare protected by their employer and to work in a safe environment. This claim can be brought in the Employment Tribunal.
Constructive dismissal if the employee was forced to resign as a result of the conduct, based on a breach of the implied term in the employment contract of mutual trust and confidence between employer and employee and the employee had worked there for at least two years. This claim can also be brought in the Employment Tribunal.
Harassment under the Protection from Harassment Act 1997 which does not have to be related to a protected characteristic but where there is a “course of conduct”, which means some element of repetition to the behaviour. This claim would be brought in the ordinary Courts.
Personal injury where an employee has suffered psychological injury and the employer was in breach of their duties, such as those under the Health & Safety at Work Act 1974. This claim would also be brought in the ordinary Courts.
This article was was produced for Essence July/August 2019 issue and can be read along with the rest of the publication on their website.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.