Thackray Williams

STRESSED, BULLIED & HARASSED AT WORK?

What are the legal options open to you if you feel that you are being bullied and harassed at work and that your health is suffering as a consequence?
If you believe that you have been discriminated against or harassed on account of your race, sex, age, disability, sexual orientation, religion or belief, then a grievance followed by an employment tribunal claim for direct or indirect discrimination or harassment under the relevant discrimination statute is often a sensible way forward. You can sue the individual employees concerned and also the employer and can claim during the employment.

But what can you do if you are unsure why or cannot prove why you are being subjected to the treatment you are complaining of? What if it is merely a personality clash?
If the treatment is sufficiently bad that you cannot countenance working on then it might constitute a fundamental breach of your employment contract (e.g. the implied term of mutual trust and confidence which should exist between employer and employee).

In those circumstances you have the option of walking out, in response to the repudiation or breach and accepting the totality of the treatment and in particular some recent triggering event, as having the effect of terminating your contract of employment, enabling you to claim constructive dismissal in the employment tribunal.

Whilst to the outside world this might look like a resignation, if constructive dismissal is proven then the employer is treated as having dismissed you by their conduct. Whilst any repudiatory breach needs to be accepted quickly, so you aren’t alleged to have accepted the breach, these claims are more complex than other unfair dismissal claims so it is worth taking urgent legal advice before walking out to bring such a claim.

But want if you don’t want to walk out?
Work related stress, anxiety, depression and even complete mental breakdown are not unusual in harassment cases.  If bullying or harassment has made you ill, or has exacerbated some pre-existing condition then you may (subject to fitting within the definition of a person with a disability under the Disability Discrimination Act) be able to demand that your employer considers making reasonable adjustments to facilitate your remaining in their employment and in regular attendance. Adjustments might include, slotting you to a different role you perceive to be less hostile, without a competitive interview, even if you “trump” better qualified applicants for the role.

Negligence
If you are not disabled your employer is still obliged to have regard to your health and safety so may still consider making similar adjustments or they risk county court negligence claims (for vicarious liability for bullying and harassment and for their failure to protect you). These claims can include a claim for personal injury although PI claims for work related stress can be difficult to succeed with, especially if the injury was not reasonably foreseeable.

What about a Protection from Harassment Act claim in the County Court?
This Act (originally passed to deal with stalkers) has been used in an employment context. Harassment under this act is not defined but there must be a course of conduct involving at least two incidents of harassment.

Obviously not every course of conduct which causes distress will constitute harassment under this act. Employees may be distressed by criticism of their performance which is entirely within the proper scope of a manager’s duties. The Court will therefore look past day to day annoyances and unattractive or unreasonable conduct and a measure of upset they may cause. To succeed the conduct complained of must cross the line from merely regrettable to unacceptable and oppressive. Whilst this is still a developing area of law it has been suggested that the gravity of misconduct required “must be of an order to sustain criminal liability”.

That said it offers the following advantages:-
• injunctive relief is an option,
• there is a 6 year limitation period (3 months for tribunal claims);
• unlike in the tribunal costs are recoverable; and
• it is not a defence open to the employer that it took all reasonable steps to stop the harassment.

For more information contact Lisa Judd on 020 8290 0440 or email: lisa.judd@thackraywilliams.com, or visit www.thackraywilliams.com.