What is bullying and harassment?

There is no legal definition of bullying, but according to the website bullyonline.org, it is the motivator that lies behind all forms of harassment, discrimination, prejudice, abuse, conflict and violence.

Harassment, on the other hand, is defined by the law as unwanted conduct that violates people's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

What legal options are open to employees?

The common law

As an employer, you have a general duty to provide a safe system of work. If an employee is being harassed, they may be able to bring a claim for damages in the civil courts, as well as a claim for negligence for psychiatric injury.

Health and Safety law

The Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1992 require you to safeguard the health, safety and welfare of all your employees.

The Employment Rights Act

Section 100 (1)(d) of the Employment Rights Act 1996 says that an employee will be deemed as unfairly dismissed if they leave their work for health and safety reasons.

Protection from Harassment Act 1997

The House of Lords said in Majrowski -v- Guy's and St Thomas's NHS Trust that you can be held liable for a breach of the Protection from Harassment Act (PHA) by one of your employees if it was done in the course of their employment.

This certainly makes it easier for employees to bring a claim under the PHA, as they just have to prove that they suffered from alarm or distress as a result of the harassment, but the decision may not help that many employees in reality.

First of all, they have to show that the harasser either knew or ought to have known that their conduct amounted to harassment. And the cost implications of bringing a claim in a civil court rather than an employment tribunal may dissuade many potential claimants.

Discrimination

Employees can also bring complaints under:

The Sex Discrimination Act 1975
The Race Relations Act 1976

• The Disability Discrimination Act 1995
• The Employment Equality (Sexual Orientation) Regulations 2003
• The Employment Equality (Religion or Belief) Regulations 2003
• The Employment Equality (Age) Regulations 2006

What defences are available?

You can defend a claim of harassment based on the discriminatory act of one of your employees if you can show that you did what could reasonably be expected to stop the harassment.

One of the most common methods is to implement an equal opportunities policy. This should state explicitly that all employees have the right to be treated with dignity, that harassment will not be condoned or permitted and that employees have the right to complain, should it occur.

But you cannot assume that just having a policy will enable you to escape liability. Tribunals will look to see if the policies have management backing and are supplemented by adequate training of supervisory staff, and whether there are effective disciplinary proceedings to deal with harassment if it occurs.

The policies should also be communicated to all employees, for instance, in notices, staff newsletters, manuals and annual reports. And they should be discussed in any induction training for new staff and included as a standard element in all other training programmes. Employees should be aware that harassment is a disciplinary matter that could lead to dismissal.

The key to dealing with complaints of harassment is the adoption (and implementation) of a complaints procedure specifically geared towards the problem.

What does the EC Code of Practice recommend?

The European Commission has produced a Code of Practice on sexual harassment, which although not legally binding, may be used by tribunals as benchmarks of good practice against which to judge employers. Its principles apply equally to all forms of harassment.

The code states that you should issue a policy statement:

• making clear that sexual harassment will not be condoned and that employees have a right to complain about it
• stipulating what constitutes inappropriate behaviour and explaining the procedure to be followed for making a complaint
• specifying the disciplinary measures applicable
• providing assurances that complaints will be dealt with seriously, quickly and confidentially, and that complainants will be protected against victimisation.

In terms of the procedure itself, the code states that:

• employees should be advised to try first of all to resolve the problem informally by explaining to the alleged harasser either themselves or through a third party, that their behaviour is not welcome
• if the unwelcome conduct persists, they should then make a formal complaint under the procedure
• the procedure should ensure that investigations are carried out with sensitivity by someone independent
• complaints must be resolved speedily and confidentially at the end of an investigation focusing on the facts

You should monitor and review these procedures regularly to ensure that they are working effectively.

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Following an earlier decision of the Court of Appeal, it looked as though tribunals would find more contracts between temporary workers and "end users". In Wood Green Engineering v Robertson, however, the Employment Appeal Tribunal (EAT) said that they should only imply contracts where it was necessary to do so.

What happened?

Ms Robertson worked for the company for a number of years through an agency, HFA Ltd. During that time, she was not allowed to work for anyone else, her line manager had to agree all her holidays and she told him if she went off sick.

Then, in December 1999 she signed on with NES International, which provided her with a statement of terms and conditions, referring to her as a "sub-contractor". During that time, she received a bonus from the company, paid through NES.

In July 2005 she became a full time receptionist with the company, but was dismissed in March 2006. She claimed unfair dismissal, but the company argued that she did not have the necessary one year qualifying period.

The tribunal decided that there was an implied contract between the company and Ms Robertson prior to July 2005, because of the degree of control it exercised over her and the fact that there was "mutuality of obligation" between the parties. In other words, that the company was required to offer her work and she was obliged to accept it.

The EAT, however, disagreed. It said that the tribunal chair misinterpreted the decision of the Court of Appeal in Dacas v Brook Street Bureau. It did not say that a contract existed just because a company has control over a claimant and there was mutuality of obligation. It agreed that tribunals should consider whether there might be an implied contract, but that they should only conclude that one exists "where it is necessary to do so." That was not the case here.

Indeed, there were "quite extensive contractual obligations both in terms of control and mutuality of obligation" between Ms Robertson and the agencies. She had to submit time sheets and had to act in a way that could not conflict with the agencies' interests. Her contract with NES had a number of clauses itemising her obligations to them, which only ceased when she became an employee.

As there were "perfectly intelligible" explanations for the contractual arrangements in place between her and the agencies and between the agencies and the company, there was no need to imply a contract of employment.

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Regulation 15(2) of the 1998 Working Time Regulations (WTR) states that employers can require workers to take their annual leave on particular days, as long as they give them notice. In Sumsion v BBC Scotland, the Employment Appeal Tribunal (EAT) held that there was nothing in the regulations restricting the days that employers could nominate as leave days.

What happened?

Mr Sumsion was contracted to work for BBC Scotland as a standby carpenter from 5 May to 26 October 2003. His contract stated that he would be required to work up to six "turns" (or days) per week. As 5 May was a Monday, his sixth working day was always a Saturday. In practice, however, he was only required to work every other Saturday and often only half a day on the Saturday that he did work.

At the beginning of September, Mr Sumsion asked to take the leave owing to him in one block. The BBC refused, stating that he could only take his leave in single days - on every second Saturday. Mr Sumsion complained that the BBC could not make use of Saturdays to meet their statutory obligation under the WTR to give him holidays.

The tribunal, however, did not agree. It said that Mr Sumsion's contract required him to work six days a week, including Saturdays. As there was nothing in the regulations to stop the BBC from stipulating when he should take his holidays (nor how many days he could take at one time) provided it was during the span of the contract, his claim could not succeed.

The EAT agreed with the tribunal. It said that there was nothing to stop employers from requiring workers to take their leave on a particular day. Mr Sumsion's contract clearly stated that he would be required "for up to six turns of duty per week". The BBC could, therefore, have required Mr Sumsion to work six days a week, including Saturdays and he could have asked to take holiday on any Saturday during the period of his contract.

It said that his argument would mean that "on call" days (when a worker might not physically be at work) could not qualify as leave days. It also meant that employers would not be able to close their business and require their employees to take their leave at the same time. That would result in teachers, for instance, asking for statutory paid leave during term-time.

In any event, neither the regulations nor the parent directive prevented employers from stipulating in a contract that leave had to be taken in single days on certain Saturdays. Nor was there anything in the regulations restricting the days that employers could nominate as leave days.

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The Information Commissioner's Office has published useful guidance on what constitutes personal data for the purposes of the Data Protection Act.

The technical guidance note - "Determining what is personal data" - is designed to help data practitioners decide, in difficult cases, whether data falls within the definition. If it does not, the rules of good information practice imposed by the Act do not apply.

This is particularly important to public authorities responding to access requests under the Freedom of Information Act. If the information requested is personal to the requester, the Act requires the request to be handled as a subject access under the Data Protection Act.

If the information requested is personal data about someone else, the Act states that it should not be released if it would involve a breach of data protection rules.

To download the guidance, go to: www.ico.gov.uk/about_us/news_and_views/current_topics/what_is_personal_data.aspx [Back to contents ]