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Workplace Stress and Harassment
23 July 2008
Stress and harassment is a particular problem for the education
sector. The telephone support line run by the national
charity "Teacher Support Network" reported a 400% increase in the
number of calls and emails they received in 2007 regarding bullying
and harassment from colleagues and managers which led them to
launch a UK-wide investigation into bullying amongst teachers in
conjunction with the University of Glamorgan. The aim of the
research was to understand what is considered to be bullying
behaviour, its effects on others and how the charity could better
support teachers subjected to bullying or harassment in the
workplace.
Since a wide range of behaviours can in some
circumstances be described as ‘bullying’ including humiliation,
gossip and rumour, exclusion, verbal and physical abuse, excessive
monitoring of work and/or performance, criticism, hostility and
practical joking, this is a worrying trend for employers. A climate
of bullying and harassment in the workplace will not only result in
high sickness levels, but potentially lead to expensive legal
claims based on stress or other related illnesses which have
alleged to have been caused by the conduct of other staff.
Employees who are bullied or harassed in the workplace have a
myriad of options for legal challenge against their employers,
including claims for breach of contract, breach of statutory duty
(for example, under the Health and Safety at Work Act 1974), claims
under various discrimination legislation. The Employment
Tribunal also provides a forum for some claims to be pursued.
Additionally, in recent times, teachers have won compensation payouts for stress at work claims
based on the common law principles of negligence. However, until
recently Protection from Harassment Act 1997 (the Act) purported to
provide the victims of alleged workplace bullying or harassment
with the easiest route to compensation.
Protection from Harassment Act 1997 ("The Act")
Section 1 of the Act makes it a criminal act to pursue a course
of conduct which a person knows or ought to know amounts to
harassment of another and section 3 allows for an award of civil
damages to be made as a result of such conduct. The Act was
initially passed following concerns that stalking was not
sufficiently well dealt with under existing legislation and with a
view to providing a deterrent to those considering embarking on a
course of unacceptable behaviour such as stalking or the targeting
of another individual.
Key case law
However, since the case of Majorwski v Guys and St Thomas' NHS
Trust (2006) there has been nothing to stop employees using the Act
in respect of relationships with colleagues at work, after the
House of Lords upheld the Court of Appeal ruling that an employer
could be held vicariously liable under the Act for the actions of
its employees, even where the employer knew nothing of the
harassment and had policies and procedures in place to prevent such
behaviour. Lord Nichols commented that the prospect of abuse
of the Act by disgruntled employees was no reason to exclude
liability and held that "the purpose of this statute is to protect
the victims of harassment, whatever form the harassment takes,
wherever it occurs and whatever its motivation".
This judgement was of considerable significance for employers
for a number of reasons. Firstly, the definition of
harassment in the Act is wide and open-ended, including causing
alarm and distress. Significantly in contrast to a negligence
claim, there is no requirement of foreseeability and neither do
Claimants need to prove a recognised psychiatric condition –
damages can be awarded for mere anxiety and distress.
Furthermore, Claimants can bring claims up to six years after the
event complained of, in contrast to the three year limitation
period for negligence claims.
Majorwski led to an increase in claims for alleged harassment at
work under the Protection from Harassment Act and a number of
stress at work claims previously pleaded on common law principles
were amended to incorporate the Act. Against this background, it
became more important than ever that employers were vigilant and
took steps to understand and recognise the signs of bullying and
harassment in the workplace.
Defining the boundaries
However, the number of claimants pursuing
stress at work claims under the 1997 Act has more recently
compelled the courts to reduce the range of circumstances in which
socially undesirable behaviour can be controlled by the courts
using two cases determined in November last year.
In Conn –v- Sunderland City Council (2007)
the Court of Appeal made it clear that
in determining whether “harassment” had occurred for the purposes
of civil proceedings under s
3 of the Protection from Harassment Act 1997 the touchstone was
to ask whether the gravity of the misconduct was of an order which
would sustain criminal liability under s 2 of the Act. Mr
Conn had worked as a paviour for the City Council. He alleged that
he had been harassed and threatened by his foreman. Certainly the
foreman and the claimant did not see eye to eye and neither party
appears to have been blameless. The trial judge had found that two
incidents between the parties had constituted harassment in law. On
one occasion the manager had threatened to punch a window and to
bring a group of employees before the personnel department after
they refused to tell him who had been leaving work early. On the
other occasion the manager lost his temper and had threatened to
give Mr Conn a hiding after he felt that Mr Conn had given him the
silent treatment. But the Court of Appeal disagreed and
concluded boorish and ill-tempered
behaviour might be unpleasant but it would need to be extreme to
satisfy the criteria for bringing a legal claim for
compensation.
In Hammond –v- International Network Services UK Limited (2007)
the Claimant was a Systems Engineer who had previously made
unsuccessful claims for unfair dismissal and race discrimination
following his redundancy in 2001. He alleged that there had been
nine instances of harassment by his former employers including
being shouted at by his manager for being late, cancelling his
hotel accommodation, unreasonable allegations of lateness and lack
of interest in his work and refusal of training. In a similar vein
to in Conn, the Judge dismissed the claim commenting that “to be
actionable under the 1997 Act the conduct in question will be
criminal and might even attract a custodial sentence. It must
therefore have an element of real seriousness”.
Conclusion
The ruling in Conn should result in a reduction in the number of
claims alleging harassment. The test as outlined by the Court of
Appeal is a far tougher criterion to satisfy than many lawyers
interpreted after Majorwski. However, more decisions are required
for it to become easier to determine exactly where the dividing
line lies between what is and what is not harassment. In the
meantime careful risk management is required by schools and
colleges.
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