ACAS sums up the position concisely in its guide to harassment and bullying in the workplace:
“[Bullying is] offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”
“The impact on the individual can be the same as harassment and the words bullying and harassment are often used interchangeably in the workplace.”
“Unless bullying amounts to conduct defined as harassment in the Equality Act 2010 [that is, if it is not related to a protected characteristic] it is not possible to make a complaint to an Employment Tribunal about it.
It is noteworthy that ACAS indicate only that a complaint cannot be made to an Employment Tribunal.
It is obvious that if bullying amounts to physical assault there will be claim in tort. Equally, if it is so serious as to reach criminal standards, the Protection from Harassment Act 1997 (PHA 1997) may come into play. Is there any remedy when bullying falls below these extreme cases?
In workplaces bullying is more commonly purely psychological and rarely reaches levels of criminality. In such cases, non-discriminatory bullying could nonetheless find a workplace stress claim in the civil courts.
All employers have a duty of care to ensure that employees are kept safe from harm, and that extends to psychiatric harm. Extensive guidance on the application of this principle to workplace stress cases was given in the well-known case of Hatton v Sutherland  EWCA Civ 76. The most important point is that the employer will only be liable if they are on plain notice of an employee’s stress, or particular vulnerability to stress, and then fail to address the issue.
Most stress at work cases relate to excessive workload. In Daniel v Secretary of State for the Department of Health  EWHC 2578, however, the claimant argued not only that she had been overworked but also that she had been bullied by a senior employee. The court analysed the issue of bullying. The judgment referred to the ACAS description of bullying set out above, and found three further references in other cases:
“It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers.” (Waters v Commissioner of Police  4 All ER 934.)
“The criterion for what does or does not amount to bullying in any given circumstances is not to be judged solely by the subjective perception of the victim himself, but involves an objective assessment of the observed behaviour taken in conjunction with any apparent vulnerability in the target of the behaviour complained of.”(H v Isle of Wight Council  2 WLUK 691.)
The courts have to distinguish between conduct which is “unattractive, even unreasonable, and conduct which is oppressive and unacceptable“; all sorts of conduct may amount to harassment and “a great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour” (Majrowski v Guys and St Thomas’s NHS Trust  1 AC.)
Sir Robert Nelson, giving the judgment in Daniel noted that the Majrowski case concerned the criminal standard under the PHA 1997. He concluded:
“taking into account the various definitions and dicta upon bullying and by analogy to harassment, I am satisfied that for bullying to be established the conduct must be genuinely offensive and unacceptable, examples of which may be intimidating, malicious or insulting behaviour intended to undermine, humiliate or denigrate“
It can be seen that in principle the court accepted that bullying could found a claim for stress at work (this had also been confirmed in Waters, albeit in the context of a discrimination claim). In Daniels the claim failed because, although the senior employee had been “forceful and blunt” his conduct was not “genuinely offensive or oppressive” and did not amount to bullying.
Breach of Trust and Confidence?
In spite of ACAS’ statement about the remedies available in the Employment Tribunal, it has been confirmed that bullying might found a claim for constructive dismissal.
In Horkulak v Cantor Fitzgerald International  EWHC 1918 a claimant successfully argued that a campaign of bullying, harassment and intimidation by the defendant’s CEO amounted to a breach of the implied term of trust and confidence in his contract of employment (citing Malik). This principle was more recently accepted in Praxis Capital Ltd v Burgess  EWHC 2631 (Ch).
It is important to recognise the limitations of this cause of action:
- It must be linked to (constructive) dismissal and will provide no remedy for an ongoing state of affairs.
- It cannot give rise to any damages for injury to feelings or psychiatric harm.
Such a proposition was expressly rejected by the House of Lords in Johnson v Unisys Ltd  UKHL 13 where it was pointed out that this was an essentially contractual cause of action and there was no jurisdiction to award damages for the manner in which a contract might be broken.
Making the case: the law goes far enough as it is
Bullying is very often subjective in nature. If the threshold for bringing a bullying claim were not robust then it would be difficult to know where to draw the line. Workplaces are practical environments; employees are concerned with getting things done. Employers and managers cannot be burdened with the requirement of ensuring that they are always sufficiently gentle with those they supervise.
The law properly recognises that positions of power should not be abused, and provides sensible safeguards. Discriminatory treatment is outlawed. Serious bullying that causes psychiatric harm or constructive dismissal can found a claim in appropriate cases.
Liberty and freedom of expression demand a certain amount of flexibility in the way employees and employers are required to behave and treat one another. Business and productivity are inherently competitive spheres of human activity; they would be hampered by overly constrictive laws on bullying.
It is right that the law does not impose any requirement simply to “be nice”.
Making the case: the law does not go far enough
The causes of action arising from non-discriminatory bullying are very limited. Unless it is possible to prove a psychiatric injury, or to tread the difficult path of causation between bullying and injury or dismissal, there will be no claim.
There is no remedy of ‘injury to feelings’ meaning that in many lower paid occupations there would be no substantial remedy at all for potentially quite abusive bullying treatment.
As a society we have made the decision to ensure that workers have a basic right to earn a living with dignity. People go to work because they have to, and they often have no choice as to those they are forced to work with. It is unfair in those circumstances to impose a hostile or intolerable working environment on them.
What do you think?
This article was first published by Practical Law.
This article is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.