Harrasment at work

[jj69]

Hi there..

 

Not sure if this is the right area but can somebody give advice on harrasment at work especially from a HR perspective or send this to the right area please..

 

Ta..

[diskmandave]

I've asked for this to be moved to the Employment Forum

and for one of the HR people to have a look in, maybe in

the meantime you could elaborate a little?

 

Regards, Dave.

[Guest Old_andrew2018]

Hi as dave suggests you will need to supply a little more information in order to recieve a reply tailored to your need.

 

Regards

 

Andy

[jj69]

I've asked for this to be moved to the Employment Forum

and for one of the HR people to have a look in, maybe in

the meantime you could elaborate a little?

 

Regards, Dave.

 

Hi Dave..

 

Basically I work in IT in a team of three.

One of the guys is ok the other an arse who is opinionated and a bully.

Me and him have not hit it off at all fair enough each to their own but he keeps sending comments via email to a couple of guys in the office which consist of putting me down , or my work is crap , i dont know what I am doing etc etc.. (he has also slated other members of staff inc managers)

This has been ongoing since Jan 2009.Not all the time just random emails sent to people.I can cope with this but the other issue is him not passing work information on to me but to our other colleague which keeps me out the loop regarding some of our work practices.

This guy is currently away for a week in training with his last email this week sent to my colleague explaining what training he has been doing and how we will all get to know it once he returns ' or the both of us will ' was his end comment referring to himself and my other colleague.

Some of these mails I have seen when he has been logged into my PC and his mail file has been open.

The others I have seen from email logs which we are admistrators for.

I plan to approach this guy and iron out these issues but obviously there may be an issue checking his emails even if they were on my PC hence my dilemma..

[MARTIN3030]

Thread moved here.

[diskmandave]

Thanks Martin, leave it with you guys now!

 

IT and IT confidentiality isn't my thing..

 

Good luck.

[MARTIN3030]

I found this which looks quite interesting.; It covers many points and even has case reference.

Its in 7 sections so I have split it up.

 

 

 

Bullying at work.

 

 

 

The law:

Health and Safety at Work etc Act 1974, s.2; s.3; s.7; s.33;

Public Order Act 1986, s.4A;

Criminal Justice and Public Order Act 1994, s.154;

Employment Rights Act 1996, ss.43A-43L; s.44; s.47B; s.95(1)©; s.100(1)©; s.100(1)(d); s.103A; s.105(6A); s.123(1); ss.128(1)(b); s.129(1);

Protection from Harassment Act 1997, s.1(1)(2); s.2(1); s.3(1)(2); s.7(2)(3)(4);

Public Interest Disclosure Act 1998;

Employment Act 2002 (Dispute Resolution) Regulations 2004; and

the anti-discrimination Acts and Regulations which prohibit unlawful discrimination on the grounds of race, sex (i.e. gender), sexual orientation, disability, religion and the like.

___________________________________________________________________________

Leading case in employment law on employers' potential vicarious liability for breaches of statutory or common law duties committed by employees during the course of their employment: -

Majrowski v Guy's and St. Thomas's NHS Trust (2005) EWCA, Civ 251, Court of Appeal. This case confirms that a claimant/employee, who has been seriously bullied at work, can take action under the Protection from Harassment Act 1997 against a fellow employee who has bullied her or him as well as against their employer and claim damages from both of them, notably from the employer who may be best able to pay a sum of money in recompense. Damages may include compensation for anxiety and/or loss of employment.

General points: -

* employers have a duty under the Health and Safety at Work etc Act 1974 to ensure the health, safety and welfare of their employees;

* serious bullying may give rise to criminal liability against the perpetrator if the 'course of conduct' (i.e. behaviour that must consists of more than a single incident of harassment), amounts to a breach of the Protection from Harassment Act 1997;

* in Majrowski, the Court of Appeal held that the supervising employee who allegedly harassed the claimant/employee could be liable at common law as could the harasser's employer and therefore both could be liable to pay damages in civil proceedings for 'any anxiety caused by the harassment' and 'any financial loss resulting from the harassment;'

* in other words, the ruling in Majrowski (2005) means that an employee who has been bullied by another employee can make a civil common-law claim for damages for 'any anxiety caused by the harassment' from the employee who harassed her or him as well as from the employer if the claimant can show that the employer was vicariously liable for the other employee's wrongful conduct that was a breach of statutory duty;

* the Court also held that an harasser's employer can be held vicariously liable for its employee's unauthorised criminal conduct by way of civil proceedings in a claim for damages even though the employer cannot be held criminally liable for the same breach;

* an employee who is bullied at work by a supervising employee or the employer itself has the option, if the bullying amounts to a fundamental breach of an implied term of the contract, to terminate the contract and, if employed for less than one year, make a claim against the employer for damages for constructive wrongful dismissal or, if employed for more than one year, make a claim for compensation for constructive unfair dismissal.

The first legal step - inform the employer in writing of the grievance: -

an employee who is bullied at work has a number of remedies available to her or him. The first legal step that an employee must take, whether he or she wants to or not, is to inform the employer in writing that he or she is being bullied. Since the 01 October 2004, an employee who fails to state a grievance to her or his employer under the Employment Act 2002 (Dispute Resolution) Regulations 2004 will be disqualified from making a claim to an employment tribunal if he or she is subsequently sacked or has to resign because of the bullying. But note that a claimant in this position can start the claim process again by writing a grievance letter to the former employer and waiting 28 days before making a further tribunal application: see Statutory Dismissal and Disciplinary Procedures and Statutory Grievance Procedures

In addition, note the Health and Safety at Work etc Act 1974: -

section 2 of the Act states that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. This would clearly cover an employer's duty to prevent and/or remedy the bullying of employees by other employees, particularly bullying by supervising employees.

Public Interest Disclosure Act 1998: -

an employee raising a grievance in good faith about a breach of the Health and Safety at Work etc Act 1974 or/and a breach of the employment contract in that the employer or 'a person has failed, is failing, or is likely to fail to comply with a legal obligation' may, if subjected to a detriment or dismissed thereafter for the reason that he or she made what may be a public interest disclosure under the Act, have a right by virtue of the Employment Rights Act 1996: - not to suffer a detriment (s.47A); not to be dismissed (s.103A); not to be selected for redundancy (s.105(6A)); and interim relief is available (ss.128(1)(b), 129(1)). See: ss.43A-43L ERA 1996. Age limit, length of service and the compensation limit do not apply. See: Parkins v Sodexho Ltd (2001) EAT 22.06.01.

Right not to suffer a detriment in health and safety cases: s.44, Employment Rights Act 1996: -

this section states that an employee is entitled not to be subjected to any detriment (i.e. a disadvantage short of dismissal) by an act or a failure to act by his employer regarding a health and safety matter he or she brought to the employer's attention by reasonable means or, alternatively, acted upon whether as a safety representative or not. The Court of Appeal held that s.44 protects employees from being subjected to a detriment (after making a complaint regarding a health and safety matter) only while employment continues: Fadipe v Reed Nursing Personnel (2001) EWCA 1885, CA.

Edited April 29, 2009 by MARTIN3030

[MARTIN3030]

But note the later Court of Appeal case Woodward v Abbey National plc (2006) EWCA Civ 822 (about an employer�s refusal to supply a reference post-employment to a former employee), wherein the Court of Appeal held that it would not be bound by the law it had laid down in Fadipe (2001) and would, instead, follow the judgment of the House of Lords in Rhys-Harper v Relaxion Group plc and other cases (2003) ICR 867, the reasons being:

(1) although the language and framework were slightly different, complaints under s.47B, ERA 1996 dealt with the same concept as the discrimination legislation which was to protect a worker from detriment in relation to her or his sex, race, disability or whistleblowing;

(2) that the judgment in Fadipe (2001) had failed to address the absurdity of limiting acts of victimisation to only those acts performed during the existence of the employment contract; (3) that the wording and purpose of s.230(3), ERA 1996, is not restricted to a former employee who �worked under� a relevant contract (so that they can bring a claim for unfair dismissal) but also includes a former employee who has reasonable grounds for making a claim under s.47B, ERA 1996;

(5) thus, s.47B, ERA 1996 (that gives a right not to be subjected to a detriment for making a protected disclosure), gives protection from victimisation to those who, in the public interest, �blow the whistle,� and that protection applies regardless of whether victimisation occurs during the course of employment or post-employment. ����

Examples: -

suppose an employee complained to the employer about being bullied and was subsequently dismissed for making the complaint. The remedy available to such an employee would be to make a claim for compensation to an employment tribunal for an automatically unfair dismissal. Such a dismissal would be for a health and safety reason. Section 100(1)© of the Employment Rights Act 1996 states that it is automatically unfair to dismiss an employee for the reason that the employee drew to the employer's attention, by reasonable means, to circumstances (such as bullying) which the employee believed were harmful or potentially harmful to her or his health and safety and there were no safety representative or safety committee in the workplace through which the employee could have raised her or his concerns. An employee can also claim automatic unfair dismissal (s.100(1)(d), ERA 1996) if the employee was dismissed because he left the workplace because of the danger of being injured due to the behaviour of another employee who was being abusive and aggressive towards him: Harvest Press Ltd v McCaffrey (1999) IRLR 778, EAT. No minimum period of employment is required and the compensatory award maximum limit of �66,200 (for the year from 01 February 2009) does not apply. An employee who has been dismissed for a health and safety reason may apply under the Public Interest Disclosure Act 1998 for interim relief within seven days following the 'effective date of termination' of the contract of employment. This is a valuable remedy but quick advice and quick action is needed to gain it.

Burden of proof: -

the burden of proving that a dismissal was for a health and safety reason is on the employee: Tedeschi v Hosiden Besson Ltd, EAT 959/95.

Duty owed to non-employees: -

there is also a duty upon employers to take steps to prevent and remedy instances where they or their employees bully the employees of other employers or bully people who come into contact, for whatever reason, with any of the employers' employees who are carrying out their duties while in their employers' employ. Under s.3 of the Health and Safety at Work etc Act 1974, there is a duty placed upon every employer and every self-employed person to conduct his undertaking in such a way so as to ensure, so far as is reasonably practicable, that persons who are not his employees, but who may be affected thereby, are not exposed to risks to their health and safety.�

Duties of employees at work: -

in the case of employees who work together, there is a similar duty, for example, not to bully one another. Section 7 of the Health and Safety at Work etc Act 1974 states that every employee is under a duty while at work:

(a) to take reasonable care for the health and safety of himself and of others who may be affected by his acts or omissions at work;

(b) as regards any duty imposed on his employer or any other person, to co-operate with him so far as it is necessary to enable that duty to be performed or complied with.

Penalties: -

by virtue of s.33 of the Health and Safety at Work etc Act 1974, a person or body corporate (e.g. a Company) may be charged with and convicted of a criminal offence under the Act. Crown bodies (excluding health authorities) have the same obligations under the Act as other employers but they cannot be prosecuted because of a rule of law that states that the Queen, as head of Crown bodies and the embodiment of the Crown, cannot be prosecuted in her own courts. Penalties were increased substantially by the Health & Safety (Offences) Act 2008.�

Failure to act and prosecute under the Health and Safety at Work etc Act 1974: -

although the Health and Safety at Work etc Act 1974 provides the means to investigate, prevent and prosecute those who conduct their businesses in a dangerous or reckless manner, there has been, on the part of enforcement officers, who are usually environmental health officers employed by local authorities, an inertia to act and a reluctance to prosecute. Only a small number of cases are brought and heard in the courts each year. Prior the coming into force of the Health & Safety (Offences) Act 2008 on 16 January 2009, the inadequate penalties levied tended to bring the law into disrepute and contempt. It had been the long-standing policy of UK governments to give businesses free reign to maximise profits at the expense of health and safety. Except for the most blatant abuses and high profile incidences which have political repercussions, the authorities generally turned a disinterested or blind eye to most breaches of health and safety which each year lead to serious injuries and deaths of working people. Notably, only the authorities can bring proceedings and the Act does not give rise to questions of civil liability and does not confer a right of action in any civil proceedings. Since the first draft of this heading a few years ago, in 2008 penalties were substantially increased; but we will have to wait to see whether the diligent enforcement of health and safety laws will be likewise increased.

Note, however, that although s.47, Health and Safety at Work etc Act 1974 specifically excludes civil liability in respect of an employer�s breach of any of its duties under that Act and, further, that the 1999 Regulations contained a similar exclusion, in October 2003 an amendment was made to Reg. 22 to the effect that employees can now claim damages from their employers if they suffer illness or injury as a result of a breach of the specific duties imposed by the Management of Health and Safety at Work Regulations 1999 (S.I.1999/3242).

[MARTIN3030]

Majrowski v Guy's and St. Thomas's NHS Trust (2005) EWCA Civ 251 - this case was about whether an employer can be vicariously liable for a breach of statutory duty by one of its employee's under the Protection from Harassment Act 1997: -

in Majrowski (2005), the Court of Appealreviewed the relevant statute law and the case-law authorities when it considered an appeal by an employee who had brought a claim under the 1997 Act against his employer alleging harassment at work. As a result of the ruling by the Court of Appeal, an employee who has suffered bullying at work may well find a better and more effective remedy by pursuing a civil action under the Protection from Harassment Act 1997 rather than attempt the rather hopeless task of persuading the authorities to take action for a breach of health and safety against her or his employer under the Health and Safety at Work etc Act 1974. In addition to civil liability, criminal liability can also be applied against the perpetrator for breaches of the provisions of the Protection from Harassment Act 1997.�

Nature of the claim: -

in Majrowski (2005), the claimant argued that his manager had breached a statutory duty placed upon her by the Act; and that the employer should be held vicariously liable for that breach. The allegations by M were that, while employed by Guy's and St. Thomas's NHS Trust, he was bullied, intimidated and harassed by F, his departmental manager. M issued proceedings against the NHS Trust under the Protection from Harassment Act 1997, the claim being that it was vicariously liable for F's breach of the provisions of the Act.

Issues for the Court: -

in deciding whether the employee's claim should proceed to trial, the Court of Appeal had to consider two important issues regarding vicarious liability:

(1) firstly, the general issue of whether an employer can be vicariously liable for an employee's breach of statutory duty;

(2) secondly, the specific issue of whether an employer can be vicariously liable for an employee's breach of statutory duty under the Protection from Harassment Act 1997.

Note: the term 'vicarious liability' refers to a rule of law that states that an employer is liable for the torts (i.e. wrongs) of its employees committed 'in the course of their employment.' The basis for this rule is that the employer is responsible for selecting and supervising its employees and, therefore, it could be said that a failure on the part of an employee to carry out her or his duties correctly shows a failure by the employer to recruit and/or supervise correctly. Many employers seek to minimise their costs and maximise their profits by reducing the costs of training and supervision to the lowest level possible based on their particular commercial judgement. When things go wrong, it is arguably employers who should accept responsibility and it is they, rather than the employees who have committed the acts or omissions, who have the financial resources to pay compensation to those who have suffered losses. For a claimant to recover compensation from the employer it is necessary for the claimant to establish that the employer is vicariously liable. To do that it is also necessary to show that the employee who committed the torts was acting in the course of her or his employment. The case of Lister & ors v Hesley Hall Ltd (2001) establishes when 'someone is acting in the course of their employment' and clarifies what a claimant needs to demonstrate in order to establish that an employer is vicariously liable for the employee's torts.

The leading case authority on 'when someone is acting in the course of their employment' is the House of Lords' case of Lister & Others v Hesley Hall Ltd (2001) IRLR 472, HL: - wherein it was held that an employer will be held liable for an employee's torts when they '� were so closely connected with his employment that it would be fair and just' to do so.

Lister v Hesley Hall (2001): -

the claimants broughta personal injury claim in which they alleged that the employers of the tortfeasor were vicariously liable for his acts which were committed during the course of his employment. Hesley Hall Ltd, that owned and managed a residential school for maladjusted and vulnerable boys, had employed the tortfeasor, G, as the warden and housemaster. G was convicted in 1995 of a number of sexual offences against boys in his care. Among the boys assaulted and ill-treated were Lister and two others, each of whom had suffered serious sexual and physical abuse by G during their time at the school. To recover compensation to pay for the damage done to them, the boys brought a personal injury claim in the County Court for damages against HH Ltd on the ground that G's employers were vicariously liable for his wrongful acts.

Lister v Hesley Hall (2001) - the County Court hearing: -

in the County Court, the judge found against the boys, being bound by the Court of Appeal case of Trotman v North Yorkshire County Council (1999) LGR, 584. However, the County Court judge found in favour of the boys on another ground. The Trotman (1999) case was about a deputy headmaster who sexually assaulted a handicapped pupil during a school trip. The implication of the Court of Appeal's decision in Trotman (1999) was that the more brutal or outrageous the conduct of the employee, the less likely it would be that the employer would be vicariously liable.� Subsequently, in Lister (2001), the House of Lords held that Trotman (1999) had been wrongly decided and, having been decided by a lower Court, their Lordships' House was not obliged to follow the Court of Appeal's decision.

Lister v Hesley Hall (2001) - the Court of Appeal: -

the employers appealed against the County Court judge's ruling and the Court of Appeal upheld their appeal. Two of the claimants then appealed to the House of Lords.

Lister v Hesley Hall (2001) - the House of Lords: -

Lord Steyn, who gave the leading judgment, noted that since the Court of Appeal made its decision, their Lordships had the benefit of the decisions of the Canadian Supreme Court in (1) Bazley v Curry (1999) and (2) Jacobi v Griffiths (1999), in which the Canadian Supreme Court approved the principle of 'close connection' when deciding whether an employer should bear responsibility for the torts of his employees.

The legal test of vicarious liability: -

in Lister & Others (2001), Lord Steyn began by citing the classic legal test of vicarious liability as set out in the leading authorities: Salmond on Torts; 1st Ed., (1907), p.83 - and Salmond and Heuston, Law on Torts, 21st Ed., (1996), p.443.

The Salmond test states that an employer is liable for the wrongful act of a 'servant' if 'it is either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master.'

Lord Steyn drew the Court's attention to Salmond's amplification of the test in which Salmond explained that:

���������������������� '� a master� is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them.'

[MARTIN3030]

It was this explanation, Lord Steyn thought, that was the germ of the 'close connection' test laid down by the Canadian Supreme Court in two landmark decisions on the vicarious liability of employers for sexual abuse of children being: Bazley v Curry, Canadian Supreme Court, 1999, 174 DLR (4th) 45; Jacobi v Griffiths, Canadian Supreme Court, 1999, 174 DLR (4th) 71.�

This principle was confirmed and developed in Dubai Aluminium Co Ltd v Salaam (2003) IRLR 608, wherein Lord Nicholls stated that:

�� ��������'� the wrongful conduct must be so closely connected with the acts the employee� was authorised to do (that) the wrongful conduct may fairly properly be regarded as done� while acting in the ordinary course of� the�employee's employment.'

The case of Salaam (2003) is authority for 'the proposition that an employer ought to be liable for a tort which can be fairly regarded as a reasonably incidental risk to the type of business carried on by the employer.'

Barnard v Attorney-General of Jamaica (2004) UKPC 47: -

in this case, the Privy Council went further than Salaam (2003) and extended the well-established principles in Lister v Hesley Hall (2001) by stating that the correct approach:

�������� '� is to concentrate on the closeness of the connection between the nature of the employment and the tort, and to ask whether, looking at the matter in the round, it is just and reasonable to hold the employers vicariously liable.'

Claims brought under the statutory tort of harassment: -

regarding claims brought under the statutory tort of harassment, the Privy Council approved the Canadian decision of Bazley v Curry (1999) wherein McLachlin J. stated that:

��������� '� the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimisation).'

Returning to the claim in Majrowski (2005): -

the claimant alleged that during his employment he suffered bullying, intimidation and harassment by a female employee who was his departmental manager. As a result, he issued proceedings against his employer under the Protection from Harassment Act 1997, claiming that the NHS Trust was vicariously liable for the departmental manager's breach of the provisions of the Act.

Majrowski (2005) - the County Court hearing: -

when the case was heard in the County Court, the judge struck out M's claim. He held that Parliament had not intended to import into the 1997 Act the general principles of vicarious liability. In other words, a claim under the Act could only be made against the perpetrator of the alleged harassment in question but not vicariously against the employer.�

�Majrowski (2005) - the Court of Appeal: -

when hearing the appeal, the Court of Appeal reviewed the case authorities and the relevant statutory law. Firstly, their Lordships began by considering whether an employer may be vicariously liable for a statutory tort committed by one of its employees, where liability is not specifically provided for in the legislation. The Court could find no reported English authority that had determined this issue. But the Court cited Harrison v NCB (1951) AC 639, a House of Lords case in which Lord MacDermott stated obiter (i.e. an opinion that does not form part of the binding judgment) that:

������ '� there is no support in principle or authority for the proposition that an employer could not be held vicariously liable for its employee's breach of a statutory duty.'

The Court of Appeal also noted that the majority of authoritative legal texts endorse the view that common law principles of vicarious liability apply equally to statutory torts committed during the course of employment. The exceptions are: (a) where the statute in question states otherwise; or (b) where there is a cogent policy reason why those principles should not be applied.

Giving his opinion of what he considers to be the substance and effect of vicarious liability, Lord Justice Auld said:

�'� the nature of vicarious liability is absolute in the sense that the employer is put into his employee's shoes and, though blameless, may be held liable.'

�He thought that once this proposition is accepted, there is no logical basis for differentiating, regarding vicarious liability, between a tort committed by an employee at common law and a breach of a statutory tort by the employee.

Principle of law stated in Majrowski (2005): -

is that an employer may now be vicariously liable for a breach of duty by its employee whether the breach is of a statutory duty or a common law duty. The general proposition, accepted by the Court of Appeal which endorsed the new jurisprudence as stated by the Privy Council and the Canadian Supreme Court, is that vicarious liability is not confined to common law claims.

The legal test to determine whether vicarious liability arises in employment cases: -

the legal test is a broader test of vicarious liability based on policy consideration, similar to the third limb (i.e. is it fair, just and reasonable to impose a duty of care on A towards B?), that defines the tort of negligence, being that of fairness and justice.

In applying the test, the Court must: -

* consider the circumstances of each case;

* consider the sufficiency of connection between the breach of duty and the employment;

* and/or consider whether the risk of such a breach was one reasonably incidental to it.

When a Court determines an allegation of a breach of statutory duty: -

the Court must examine the statute in detail in a case where a claimant alleges a breach of statutory duty for which the claimant seeks to establish the employer's vicarious liability. It is for the claimant to show that the statute in question does not exclude such liability:

������� '� either expressly or on its proper construction, the latter guided, where appropriate, by considerations of policy.'

[MARTIN3030]

What a claimant must show: -

aware that there may be a flood of claims for which employers are unlikely to be insured under their standard insurance policies (Employers' Liability (Compulsory Insurance) Act 1969), the Court of Appeal drew attention to the substantive requirements which need to exist before a claim could succeed under the Protection from Harassment Act 1997. These are: -

*� the claimant must establish to an objective standard that the course of conduct complained of amounts to harassment as defined by the Act, usually in the sense of the conduct being likely to alarm or cause the claimant distress;

*� the Act does not give a definition of 'harassment.' The omission of a restricted definition enables the term to be applied to a wide range of differing circumstances. The dictionary definition of 'harassment' is: 'to trouble, 'to torment,' 'to annoy, 'to pester,' 'to worry byrepeated attacks.' The Act itself states that harassing a person includes alarming the person or causing the person distress: s.7(2). (It has to be remembered that debilitating physical and psychological effects can be caused to a person who is being or has been harassed - such as high blood pressure, heart disease, skin disorders, depression and so on);

* the conduct must be serious. It has to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. The conduct must be such that the perpetrator knows or ought to know that it amounts to harassment. It must be conduct that a reasonable person would think amounted to harassment as stated by the Act: s.1(2);

* the fact that the conduct must be serious is shown by the Act that provides for criminal sanctions including imprisonment and/or a fine. The Act also provides injunctive remedies. In regard to the requirement that the conduct must be of a serious nature, May LJ said that a Court hearing a civil claim: '� will be alive to this fact when considering whether what is alleged really does amount to harassment;'

* the 'course of conduct' that constitutes harassment under the Act must more than a single act by the harasser against the claimant/employee during the course of employment. See: Banks v Ablex Ltd (2005) IRLR 357, CA, in which B made a claim against her employer alleging it was vicariously liable for the misconduct at work of another of its employee, that allegedly amounted to a breach of the Protection from Harassment Act 1997, but the claim failed because the Court held that the conduct complained of did not constitute 'a course of conduct,' there being only one alleged act of harassment. In addition, she made a further claim against her employer for negligence, alleging that the other employee's conduct had endangered her mental health, but this claim also failed because the Court held that the employer had not reasonably foreseen loss or damage to her - see Negligence

* vicarious liability against the employer will only be established where there is a sufficiently close connection between the harasser's conduct and the nature of her or his duties and, also, where it is just and reasonable to hold the employer liable for the harasser's conduct;

* there is no defence available to the employer as there is under the anti-discrimination legislation. Thus, an employer cannot offer a defence with regard to vicarious liability by asserting that he took 'such steps as were reasonably practicable' to prevent the harassment taking place because the 1997 Act provides no such restriction and no such defence;

* the risk of harassment must be reasonably incidental to the employment. On this point, the Court of Appeal noted that harassment in the workplace is widespread and can occur not only between employees but also by an employee against an outsider, such as a customer or a third party, with whom work brings the employee into regular contact:

������������ '�it is thus often likely to be a risk incidental to employment.'

Vicarious liability against an employer also arises where: -

* an employee, in the course of her or his employment, commits a tort at common law, for example, where the employee negligently causes another person to suffer an injury;

* an employee commits an act of discrimination under any the various anti-discrimination legislation.

Case example: the employer of a rugby player whom it employed part-time under a contract of employment - and who, during the course of a match, punched a member of the opponent team in the face during the breakup of a scrum - was held vicariously liable for the serious injury to that player: Gravil v Carroll and Another (2008) EWCA Civ 689, Court of Appeal.

What employers need do: -

in addition to the usual health and safety and anti-discrimination policies and practices, employers also need to put in place policies and practices which have the aim of preventing and/or reducing harassment in the workplace. As part of these policies, there should be a code of conduct for employees; and procedures to be followed in cases where an employee makes a complaint of harassment or others do so who are affected by the employer's business.

The relevant provisions of the Protection from Harassment Act 1997: -

s.1. Prohibition of harassment -

(1) A person must not pursue a course of conduct -

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

S.2. Offence of harassment -

(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.

S.3. Civil remedy -

(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

[MARTIN3030]

S.7. Interpretation of this group of sections -

(2) References to harassing a person include alarming the person or causing the person distress.

(3) A 'course of conduct' must involve conduct on at least two occasions.

(4) 'Conduct' includes speech.

What the judgment in Majrowski (2005) means: -

* a claimant may now bring a claim for damages against the employer for 'any anxietycaused by the harassment and any financial loss resulting from the harassment' (per s.3(2) Protection from Harassment Act 1997) caused by more than one act of harassment perpetrated by one or more of the employer's employees;

* a claimant is not required to show an identifiable psychiatric injury (as required, for example, in a personal injury claim or a claim under the Disability Discrimination Act 1995). All that the claimant is required to show to qualify for an award of damages is 'any anxiety caused by the harassment;'

* a claimant is not required to show that the injury was a reasonably foreseeable consequence of the breach of duty unlike, for example, in a claim for loss or damage in the tort of negligence or in a personal injury stress at work claim;

* a claimant has six years in which to make a claim as s.6 of the Act disapplies the three-year limitation period that applies in personal injury cases.

Dunnachie v Kingston-upon-Hull City Council (2004) UKHL 36, House of Lords: -�

is the type of case in which a claim could be made under the Protection from Harassment Act 1997.

The facts: -

Christopher Dunnachie joined Hull City Council in 1986 at the age of 19 and worked in the Council's Environment Health Department becoming an acting principal Environmental Health Officer, the position he held when he resigned in 2001. Following a prolonged campaign of bullying and undermining by his colleague and line manager, K, which was a situation that the Council had failed to alleviate, D was forced to resign.

Employment tribunal hearing: -

an employment tribunal held that the Council had breached the implied term of mutual trust and confidence and upheld D's complaint that he had been unfairly constructively dismissed. The tribunal also found that managers had either failed or refused to recognise that he had been a victim of bullying. There was no evidence of a recognised psychiatric condition but D had been reduced to 'a state of overt despair.' To compensate him, the tribunal awarded him �10,000 compensation for 'non-economic loss' under s.123(1), ERA 1996 (for injury to feelings - i.e. for stress and humiliation - caused by the manner of the unfair dismissal) in addition to the financial losses flowing from his loss of employment.

Employment Appeal Tribunal: -

the Council appealed successfully, the EAT holding that an award for non-economic loss was outside the remit of employment tribunals per the rule in Norton Tool Co Ltd v Tewson (1972) NIRC, ICR 501 in that compensation for unfair dismissal should only be payable in respect of identifiable financial loss, for example, if it has affected the claimant's reputation thereby damaging the former employee's future job prospects. Compensation for injury to feelings or psychiatric injury arising from an unfair dismissal could not therefore be recovered under what is now s.123, ERA 1996. The ruling by Donaldson J., then the first President of the National Industrial Relations Court, who said: 'Loss does not include injury to pride or feelings,' had been followed for some 30 years.

Court of Appeal: -

hearing D's appeal from the EAT, the Court of Appeal overturned the long-standing rule in Norton Tool Co Ltd v Tewson (1972), holding that an ET may award compensation for non-economic loss, including injury to feelings, arising out of the manner or circumstances of an unfair dismissal. The Court of Appeal was influenced by Lord Hoffmann's observations in Johnson v Unisys Ltd (2001) UKHL 13 when he said:

������� 'It was said that the word 'loss' can only mean financial loss. But I think that is too narrow a construction. � I see no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life.'

Section 123, Employment Rights Act 1996 states that the compensatory award in an unfair dismissal case should be 'such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal' - see Unfair Dismissal

House of Lords: -

hearing the appeal, the House of Lords reversed the decision of the Court of Appeal that had held that compensation could be awarded for stress in relation to unfair dismissal. Giving judgment for the House of Lords, Lord Steyn said that damages for non-economic loss are not recoverable for unfair dismissal and that s.123 of the Employment Rights Act 1996 only allows tribunals to award compensation for financial losses. He added that the observation of Lord Hoffmann in Johnson v Unisys Ltd (2003) was an obiter dictum (at para. 13). Re-affirming the rule in Norton Tool Co Ltd v Tewson (1973) 1 WLR 45, Lord Steyn said:

������� 'There is no compensation for injury to feelings or the manner of dismissal, unless that gives rise to financial loss. � I would hold that section 123(1) of the Employment Rights Act 1996 does not allow for the recovery of non-pecuniary loss.'

An alternative claim: -

by using the Protection from Harassment Act 1997, a claimant in D's position could now claimed damages for 'any anxiety caused by the harassment and any financial loss resulting from the harassment: s.3(2). Although D usefully explored the possibility that compensation may be awarded for non-economic loss under s.123(1) of the Employment Rights Act 1996 following Lord Hoffmann's non-binding observation in Johnson v Unisys Ltd (2003), making a claim under the 1997 Act may have been quicker and more effective in terms of comprehensive justice. In the event, the House of Lords' decision did not affect D's compensation as he was awarded the maximum amount to cover his economic loss.

[MARTIN3030]

Liability for bullying arose against an employer even under the old law: -

a case that was heard in 1957 was about an apprentice who had been bullied by a fellow employee.� The Court held that the employer was not liable in his capacity as the employer of the bully because the bully was not acting in the scope of his employment. However, the Court held that the employer was personally liable as the employer of the claimant/apprentice for failing to take reasonable steps to protect him from the bully: Hudson v Ridge Manufacturing Co (1957) 2 QB 348.�

Other instances where vicarious liability may arise: -

pupils who are bullied at school are an obvious example. Schools and local education authorities have a raft of duties to the effect that they should take care of pupils in their care. The same applies to local police services which have a statutory duty to prevent breaches of the criminal law such as bullying (i.e. assaults) that takes place inside or outside of schools and, where breaches occurs, to investigate and detect offences as well as, where appropriate, pass information to the prosecutors.

Constructive dismissal: -

the bullying of an employee at work by a supervising employee or by the employer may amount to a breach of contract. This is a breach of an implied term deemed by the law to be contained in all contracts of employment to the effect that an employer will not, without just cause, engage in conduct that is likely to destroy or seriously damage the trust and confidence of the employment relationship. A fundamental breach of this kind gives the employee the option of terminating the contract of employment (with or without notice) and, if employed for less than a year, making a breach of contract claim for wrongful constructive dismissal (Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994) or, if employed at least one year, making an unfair constructive dismissal claim (s.95(1)©, ERA 1996) - see: Unfair Constructive Dismissal�

Harassment that does not constitute a �course of conduct;� i.e. one-off incidences:

a one-off incidence of harassment occurred in Richmond Pharmacology v Dhaliwal (2009) EAT (Case No.0458/08), judgment 12 February 2009. The appeal at the EAT was heard by the President, Mr Justice Underhill, who upheld a claim for racial harassment contrary to s.3A, Race Relations Act 1976 and an award to the claimant of �1,000 by the employment tribunal for injury to feelings.

[Note that in relation to harassment, similar provisions apply in the other anti-discrimination legislation:- s.4A, Sex Discrimination Act 1975; s.3B, Disability Discrimination Act 1995; Reg.5, Employment Equality (Religion or Belief) Regulations 2003; Reg.5, Employment Equality (Sexual Orientation) Regulations 2003; and Reg.6, Employment Equality (Age) Regulations 2006.]

Dhaliwal (2009) was a case in which a remark made by an employer to an employee of Indian ethnic origin referring to the possibility of her being �married off in India� had the effect of violating her dignity and constituted harassment within the meaning of s.3A, Race Relations Act 1976. (The remark was stereotypical by suggesting a forced marriage).

Giving judgment for the EAT, Mr Justice Underhill said that employment tribunals should ignore precedents set in harassment cases that pre-date the introduction in 2003 of new definitions from EU Council Directive 2000/43/EC (�the Race Directive�). He said that harassment laws used to be derived from discrimination legislation, a situation that was not ideal. That meant that rulings from the era of the older law were not helpful.

He continued: �The old law was constructed, somewhat uncomfortably, out of the general statutory definitions of discrimination� The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps.� Thus, the EAT said that previous rulings on harassment should be disregarded. The Race Relations Act 1976 now contains parts, at section 3A, which were inserted in 2003 to make it comply with the EU Directive. Underhill J said: �� such case-law as there was in relation to �harassment� as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful. Still less is assistance is likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated case-law.�

Mr Justice Underhill outlined the steps which tribunals should go through when considering racial harassment cases. (The same applies to an incident of harassment under any of the other discrimination Acts and Regulations). The law now states that harassment occurs if it has the �purpose or effect� of violating a person�s dignity or creating an intimidating atmosphere. Underhill J: �That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so��

Harassment occurs, then, if the perpetrator means it to, or if the offended person feels that it has occurred. Mr Justice Underhill pointed out, though, that any feeling of being harassed must be considered objectively to be reasonable, based on the offending behaviour. He said: �A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred.�

He explained: �If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstance, including the context of the conduct in question.�

Mr Justice Underhill concluded by saying that a further requirement, that the conduct be shown to be on the grounds of race, will be familiar to tribunals, and that they can use previous cases related to other laws to guide them. He added: �There is ample case-law on the nature of the inquiry required by the (interchangeable) statutory phrases �on the grounds of� or �by reason that.��

[MARTIN3030]

So there you have some food for thought

[jj69]

So there you have some food for thought

 

 

wow thats quite a bit to get through....

My only concern is that some of the evidence ie emails come from this guys email account even though we have access to each others accounts I suspect I could be breaking company policy by accessing sombody else's email,but how do I prove otherwise without documented proof..

[WelshMam2009]

I would make an appointment to see someone senior in HR and tell them what's going on. Is he likely to have deleted the emails? If not, then I would ask for his email account and pc to be checked for this.

 

What he is doing is bullying, which can be very subtle, such as withholding information and belittling you.

 

Your call, but I wouldn't stand for it. I would insist that HR check his pc first before divulging any information to him.

[MARTIN3030]

Have you looked on the headers of the emails to see what the privacy policy is ?

Emails,whilst can often be priviledged,are in some circumstances admissible in evidence.

[MARTIN3030]

Have you took copies/screenshots of the emails ?

[jj69]

Have you took copies/screenshots of the emails ?

 

I have printed off all the relevant docs and put in a folder.

About two months ago he tried to get a meeting with our line manager and senior manager regarding my timekeeping and how bad it was (according to his own standards) but our senior manager just said you are big lads sort it out yourself which we did.

We have flexi time which we add manually in quaters such as 15/30/45/00 etc so I was using this as required and his complaint was that I if I came in at 8.20 I would sometimes put 8.15 the boss just said well we all do that sometimes.

At the moment he wont pass on any details of work completed except to our other colleague then has the cheek to send emails saying how I did not fix this or that only due to lack of knowledge in the first place.

Work is relaxed so no pressure on completing jobs etc..the other factor , it is a large public organisation so we have proper union reps and HR procedures.

I want to confront this guy face to face first and tell me he is out of order ,but he could turn around and ask if I have been reading his emails...

[crem]

I'm no expert in this emplyment and HR area, but from reading through your thread I do not think "confronting him face to face" is the way to go with this now. It sounds too serious forthat and I think it should be dealt with through the structured grevance proceedures that I am sure you have in place.

[jj69]

I'm no expert in this emplyment and HR area, but from reading through your thread I do not think "confronting him face to face" is the way to go with this now. It sounds too serious forthat and I think it should be dealt with through the structured grevance proceedures that I am sure you have in place.

 

Well my only concern is HR turning round and saying you commited an offence by printing out another persons email from their email account..

[jj69]

I would make an appointment to see someone senior in HR and tell them what's going on. Is he likely to have deleted the emails? If not, then I would ask for his email account and pc to be checked for this.

 

What he is doing is bullying, which can be very subtle, such as withholding information and belittling you.

 

Your call, but I wouldn't stand for it. I would insist that HR check his pc first before divulging any information to him.

 

I seen his email account this week and no he has not deleted any..he also has some against our managers due to the fact ' he does not like the way certain procedures are done ' .

He is quite outspoken and offensive about certain people behind their backs which annoys the hell out of me...

[MARTIN3030]

So you obv need some clarification as to your legal standing as regards the emails (referring to them).

In the absence of knowing where you stand on this-it could be counter productive to take any steps until thats established.

I will ask site team collegues for some thoughts.

[MARTIN3030]

I also found this;

 

What are the most common legal problems with using email?

 

Because emails are easy to send, and often seem less formal than traditional business documents, it is not uncommon for people to send ill-advised messages. In addition, such emails can be quickly circulated to a wide audience, and are easily stored and used as evidence. All businesses are 'vicariously liable' for the actions of their employees, and your business is likely to be held liable for emails sent by employees.

 

One of the commonest problem is inappropriate content - for example, messages containing sexual or racial abuse, or libellous statements. Even the tone of an internal email - often blunt and impersonal - could create a hostile working environment and lead to claims for stress, discrimination or harassment. As a simple rule, do not send or forward emails that could be illegal, offensive or discriminatory.

 

A further problem is that some employees do not realise that the emails can create contractually binding commitments, or form part of a contractual agreement.

 

Finally, email can be used in a way which infringes other people's intellectual property rights - for example, sending unauthorised copies of literature or pictures.

[MARTIN3030]

So based on the info above-it does appear that the Employer can be made liable....and it also suggests that they can be used in evidence.