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Employment Law Services — Employees

Workplace bullying – help to find a solution

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 Equality Act is often a sensible way forward. You can sue the individual employees concerned and also the employer. Harassment in these cases means unwanted conduct having the purpose or effect of either violating the claimant’s dignity or creating an adverse environment.

  • What can you do if you are unsure why you are being subjected to the treatment you are complaining of?

       What if it is merely a personality clash and the person concerned doesn’t like you, or if you suspect a prohibited ground e.g. race underlies the treatment but you cannot prove it?

      If the treatment is sufficiently bad that you cannot countenance working on, 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.

  • Walking out

      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. By doing this however you do put yourself out of an income.

       

      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. However, such claims are more difficult to succeed with than an ordinary unfair dismissal claim where the employer effects an actual dismissal. Therefore, whilst any repudiatory breach needs to be accepted quickly so you are not alleged to have accepted the breach, it is worth taking urgent legal advice before walking out with a view to bringing 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) 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, for example, slotting you into a different role away from any individuals who you are complaining about.

  • Negligence

      If you are not disabled for the purposes of bringing a claim under the Equality Act 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 the failure of management and HR 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 isn’t 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. 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 to succeed with this claim “must be of an order to sustain criminal liability”.

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