Bullying and harassment in the workplace are on the rise. Cases are occurring in the Isle of Man, though most get settled early on. According to findings from a survey of 2,000 employees by the Chartered Institute of Personnel and Development in October 2008, one in five UK employees has been subjected to bullying and harassment in the last two years. Advice helplines such as ACAS and UK National Workplace Bullying Advice Line have also reported a staggering increase in employees seeking advice on bullying. We examine who in the workplace is responsible for the occurrence of bullying, what steps employers can take and what protection the legal framework offers to employees in this respect.

Conduct such as yelling, name-calling, inappropriate comments about a person's appearance, malicious teasing or being made the brunt of practical jokes can constitute bullying. Other behaviour may include excessive criticism of one's work, ignoring or isolating the employee, assigning meaningless tasks, failing to give credit where it is due or undermining the employee's work performance.

It is generally accepted that an employer may be vicariously liable for the acts of an employee. Therefore, in situations where a group of employees might "gang up" on one individual and bully that person, the employer may be responsible for the injuries and damages caused to the bullied employee if the acts of the group were closely connected to their employment. This will be relatively simple to establish in cases where the bullying happens on work premises during working hours. More interestingly, the employer's liability may also extend to office functions such as Christmas parties or business trips abroad. Some larger businesses now operate a specific policy on parties to protect against such liability.

In certain cases, the employee's own existing vulnerabilities (e.g. such as a violent past or bullying at school which may cause the person to be more affected by criticism) will be taken into account and more care will be expected of the employer in such cases.

An employer will be better prepared to deal with instances of bullying where a clear anti-bullying policy is not only drawn up but also followed. Ultimately, a court or tribunal will look at what the employer has done and not what the employer is seen to have done. A good policy will include a definition of bullying and examples of what constitutes bullying. A zero-tolerance to bullying statement is also usually recommended together with a clear grievance procedure for employees to follow should they be the victim of bullying. Good communication between organisational departments is also essential as an employee may discuss an incident with their line manager and not alert the Human Resources department to the same or vice-versa. Should the employer deal with the instance of bullying promptly and efficiently, it will significantly decrease its chances of being found liable for damage or injury caused to the bullied employee.

In cases where the employer does not take reasonably practicable steps to avoid such conduct in the workplace, the employee will not only have recourse as against the harasser personally, but may also have a claim against the employer.

In the employment tribunal forum, the employee can now bring a claim against the employer under the sex discrimination legislation if the bullying is caused by reason of the employee's sex or marital status. Further, an employee may also have a cause of action against the employer if the bullying is by reason of the person's belief, sexual orientation or race (though the conduct in this case must be connected to the employee's dismissal if the claim is to be successful). A successful claim in the employment tribunal can attract an award of up to £35,000 (including £5,000 for injury to feelings) plus a statutory basic award based on years' service.

An employee may also bring a claim under the Protection from Harassment Act 2000 or where the employee has sustained a physical or psychological injury, a claim in negligence for breach of the duty of care by the employer. The damages in such cases are uncapped and can therefore potentially be an expensive affair for employers.

It is good practice therefore for employers to be pro-active in this respect, have a clear anti-bullying policy and deal with instances of bullying as they arise in a professional and speedy manner.

For further information, please contact the employment law unit at Mann & Partners.

Chiva Samani is a trainee advocate with Mann & Partners and a member of the practice's employment unit.

Contact: law@mannandpartners.com

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