Since Tom Brown's schooldays bullying has traditionally been seen as a problem associated with schools and children. But the spotlight is now being turned on workplace bullies through union campaigns which have led to greater media interest.
Now that workplace bullying is being exposed as a major problem, case law is likely to develop considerably and there may be future legislation. How can the law help now?
Sex and race harassment and bullying is well established unlawful discrimination under the Sex Discrimination Act 1975 and Race Relations Act 1976. Unlawful sex or race discrimination covers not only treatment of a sexual or racial nature, but any other less favourable treatment on grounds of sex or race.
The European Union's Code of Practice and Recommendation on Sex Harassment provides clear and comprehensive guidelines on steps to be taken to prevent the risk of sex harassment in the workplace and ways in which procedural safeguards can be established. The Code has been crucial in establishing policies at work to protect the dignity of men and women from gender based treatment. In IT cases employers will have great difficulty in saying that they have taken reasonable steps to prevent acts of harassment if they have not complied with the Code.
Those who suffer less favourable treatment, harassment and bullying for having raised a complaint of sex or race harassment are further protected through the anti-victimisation provisions of both the Race Relations and Sex Discrimination Acts. The protection is extended to circumstances where the employer thinks an employee might raise a complaint of unlawful discrimination - either on their own or another's behalf - and includes protection for witnesses who come forward in discrimination cases.
But what of workplace bullying which does not have either a sex or racial aspect? Boss against worker or even bullying by fellow workers? There is no specific legal protection.Â
For legal rights and remedies it is necessary to rely on general contractual and employment law principles.
Workplace bullying will often involve a breach of an implied term and condition of employment, most obviously the mutual obligation of trust and confidence. This includes the obligation not to be humiliated, intimidated or degraded, failure to be treated with dignity and consideration and failure to deal with employees' complaints and treat them with sufficient gravity.
Failure to provide reasonable support to enable a worker to carry out his duties without disruption or harassment from fellow workers will also be a breach of the implied term of trust and confidence. Other relevant implied terms will be the obligation to provide a safe work place and safe and competent colleagues.
The principles of constructive and unfair dismissal apply to workplace bullying. The bullying must amount to a breach of contract and the breach must be sufficiently serious to justify the employee resigning either for a one-off act or the last in a series of incidents.
The employee must leave in response to the breach and must not delay too long or may be deemed to have waived the breach.
The consequences of workplace bullying can be devastating for employees, affecting their physical and mental health, self esteem and work performance.
Depending on the nature of the bullying, personal injury claims for physical assaults and psychological injury may be possible. The employer will be liable for acts of bullying or harassment by employees which takes place in the course of their employment.
The current legal framework looks neither to cure nor prevention but rather compensation after the event. MSF's Guidance on the Adoption of Policies on Bullying at Work suggests defining bullying in its various forms and including bullying as a disciplinary offence. It also suggests procedures for the prevention and investigation of acts of bullying.
Thompsons is working with MSF on a Private Member's Bill which would provide specific legal protection against bullying and new methods to make the legislation easier to enforce.
The Labour Party commitment, in THE ROAD TO THE MANIFESTO, to establishing basic minimum standards of fairness at work, properly enforced,may also give scope for positive legislation to safeguard the dignity of workers and provide a legislative framework to tackle the workplace bully.
Two years' service not needed if you insist on statutory rights
Mennell v Newell & Wright (Transport Contractors) Ltd [1996] IRLR 384
Bullying and fear at work can stem from misunderstandings about legal rights and especially about the two years' service rule normally needed to allow an unfair dismissal claim. What is less well known is that employees are protected from day one of employment against dismissal for asserting a statutory legal right.
This protection comes from section 60A of the Employment Protection (Consolidation) Act 1978, introduced in 1993, which makes it automatically unfair to dismiss someone for 'asserting a statutory right'. The statutory rights referred to include the written statement of particulars, itemised pay statement, guarantee payments, maternity rights, Wages Act claims, union victimisation or time off, unauthorised check off deductions and political fund opt outs.
Section 60 was introduced as a partial response to employers who dismissed employees with less than two years' service who 'caused trouble' by insisting on legal rights, for example, a written statement of employment terms. But what does it mean in practice - and what protection does it give?
The protection applies where the employee has brought a claim to enforce a right or has alleged that the employer has infringed a right. It is automatically unfair to dismiss the employee for making the claim or allegation.
The first appeal case on this law has now been reported. Mr Mennell, who had less than two years' service, was asked to sign a changed contract which gave his employers the right to make deductions from pay. He refused and was sacked.
The Employment Appeal Tribunal said this could be a dismissal for asserting a statutory right. A threat of dismissal to vary the contract so an employer could make deductions is an infringement of the right not to have deductions made without consent.
It did not matter that no deduction had been made or that no right had actually been infringed. In fact it was not even strictly necessary to establish that the employee actually had any right to infringe.
The key question is whether the employee, acting in good faith, asserted or claimed to have a relevant statutory right. It does not matter whether the employee had the right, let alone whether it was infringed.
Mennell's case has been sent back to the Industrial Tribunal to consider these points and to decide the issue which is likely to prove the real stumbling block for employees: was the employee's assertion of a statutory right the reason for the dismissal?