Transcript Risks of Ignoring Bullying and Harassment Complaints

Risks of Ignoring Bullying
and Harassment Complaints
Hilary Beaumont
&
Sean McCarthy
PROGRAMME
Today we hope to cover: Bullying & harassment –
definitions
 Statistics
 Vicarious Liability
 Cost to employers
 Where do claims go?
 What should you do next?
What is harassment
and bullying?
 An abuse of power
 Chambers Dictionary
definitions
 Bully – “a cruel oppressor
of the weak…..a ruffian
hired to beat or intimidate
anyone.”
 To harass “ to distress,
wear out, annoy, pester.”
Definition of harassment
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Harassment – discrimination law specifies it as a
form of discrimination . There is no justifiable
defence for an act of harassment.
Harassment - behaviour is unwanted and the
unwanted behaviour affects or has the purpose of
violating dignity creating an intimidating, hostile ,
degrading environment.
Harassment is occurs whether the intention to
harass succeeds or not and whether or not the
person meant it. It can be one single act or a series
of events.
ACAS defines harassment as “ unwanted conduct
affecting the dignity of men and women in the work
place. It may be related to age, sex, race,
disability, religion, nationality or any personal
characteristic of the individual, and may be
persistent or an isolated incident. The key is that
the actions or comments are viewed as demeaning
and unacceptable to the recipient.”
Definition of bullying
 “Offensive behaviour through
vindictive , cruel, malicious or
humiliating attempts to
undermine an individual or
group of employees” ( Andrea
Adams, Andrea Adams Trust.)
 It is not possible to make a
complaint direct to a tribunal
about bullying but a person
can raise their complaint under
some other guise e.g.
discrimination and
harassment.
ACAS Examples
 Spreading malicious rumours or
insulting behaviour
 Circulating critical literature
 Ridiculing or demeaning someone
 Exclusion or victimisation
 Unfair treatment
 Over bearing supervision or misuse
of power or position
 Unwelcome advances – touching,
standing too close, display of
offensive materials
 Making threats/ comments about job
security without foundation
 Deliberate undermining of a
competent worker by overloading and
constant criticism
 Blocking deliberately promotion/
training opportunities
Statistics
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70% of HR professionals have witnessed or
have been aware of bullying in their
organisation
More than half (59%) said they had specific
policies and procedures in place
(96%) of organisations offer managers
training on how to deal with cases of
bullying.
Nearly two-thirds (62%) have come across
incidences of verbal abuse and 5% physical
abuse.
18.9 million working days are lost to bullying
and up to a half of all stress-related
illnesses are a direct result of bullying.
Approximately 1.8% of salary budgets
is paid to be people off with stressrelated illness as a result of bullying.
1 in 4 people report that they have been
bullied in the last 5 years.
More than 2 million people at work consider
themselves as being bullied
Vicarious Liability
 Employees are personally liable for
wrongful acts they commit in the
course of their employment which
cause injury or damage to a third
party
 Employer may also be vicariously
liable to compensate the third party
 they created the situation in
which the employee caused
harm or injury
 they are more likely to have
financial resources to
compensate the third party
 If employer has a policy, is clear
about standards of behaviour ,
offers training etc = a defence
against liability as tried to prevent
such an incident occurring
Cost of Bullying &
Harassment
 Cost to the individual
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Health
Productivity
Self esteem
Loss of career or livelihood
Home life or relationship
difficulties
 Suicide
Cost of Bullying &
Harassment
Cost to the employer
Bully is not doing his/her job
properly
Bully is stopping the other
person(s) doing their job
properly
Negative stress, leading to
increased absence rates from
affected employees (not just
the bully and the victim)
Replacement costs – losing a
valued employee (total costs
can reach 3x salary)
Bad publicity/reputation
Cost of Bullying &
Harassment
Legal costs
 Investigation/grievances will cost at
least £1000.
 Employment Tribunal costs will be
minimum £10k and are more
usually about £30-50k if a barrister
is involved
 ET awards may be over a £1m if
discrimination is also involved
 County Court action could cost
£100k and take 3 years
 High Court action costs up to £1m
and takes up to 5 years
 House of Lords costs will be an
extra £100k (for ECJ add another
million)
 People are side-tracked from doing
their job by these hearings.
 Even if you win, it will still cost.
CLAIMS - 1
Liabilities under discrimination
law
 Unlimited damages including
payment of fines for injury to feelings
– burden of proof on the employer to
show that they do not discriminate as
opposed to the employee to show
that they did.
 Remember there can be multiple
claims – this may become more
prominent with the new Age
Discriminations Regulations coming
in October 2006 e.g. on grounds of
race + sex+ age+ religious belief etc
CLAIMS - 2
 Christopher Dunnachie v
Hull City Council .
 Health and Safety at work
Act 1974 Employers have a
statutory duty of care to
employees.
 Public Order Act - It could
be an offence under the Act
if there was an intent to
cause harm and distress:
this can result in a fine of up
to £5000 and/or up to 6
months in prison.
Claims - 3
 Protection from Harassment Act
1997.
 This Act, originally introduced to
deal with stalkers, provides
redress under the civil and
criminal law for acts of
harassment. There are 2 criminal
offences
 low level up to 6 months
imprisonment
 high level up to 5 years
imprisonment.
 Key case on this William Majrowski v
Guy and St Thomas’ NHS Trust –
Court of Appeal decision allows for a
civil remedy and provides for
damages for anxiety that falls short of
injury to health.
Claims - 4
Contractual issues
 An implied term to provide a safe
working environment. If the employee
considers that the employer allowed
bullying and harassment to occur or
didn’t deal with it – can claim that this
was a breach of contract, failure to
maintain trust and confidence and
possibly claim constructive dismissal.
 Steven Horkulak v Cantor Fitzgerald
International
What next
 Recruit the right people
 Have a clear harassment and
Bullying policy
 Make everyone aware of the
policy and their rights and
responsibilities (including training)
 Stick to the policy and deal with
complaints quickly
 Don’t accept bullying/harassment
as “management robustness”
 Provide support to employees
(mediation, counselling or
colleague support)
 Be confident enough to dismiss
the bully/harasser.