The issue of bullying at work hit the headlines a few weeks ago following allegations that Gordon Brown’s staff had called an anti-bullying helpline. Closer to home, a Guernsey employee was awarded £10,920 by the Employment Tribunal last year based on a finding that he had been bullied at work. The Tribunal’s finding has been appealed to the Royal Court and a judgment is expected imminently.

In this article, we consider the facts of the Guernsey case and issues surrounding bullying at work, including advice on how to handle a bullying complaint.

Kinsey v A J Troalic & Sons Ltd – the facts

A claim of constructive unfair dismissal was brought in April last year by Mr Aaron Kinsey who had been employed by A J Troalic & Sons Limited to work as a mechanic. After hearing the evidence of both parties, the Tribunal made the following findings

  • there was an environment of conflict between the Troalic family members and other employees;
  • Mr Kinsey was subjected to bullying and harassment which affected his health and led to his absence from work for two weeks with depression;
  • the day after Mr Kinsey returned to work following his sick leave for depression, Mr A Troalic spoke to him about various matters relating to his work performance, including his absence and issues of poor workmanship.

The Tribunal held that any reasonable employer would have had particular regard to the health of an employee who had only just returned to work after an absence due to mental health problems. It went on to conclude that the meeting was a “final straw” event for Mr Kinsey who saw it as a final act of bullying that he could not tolerate.

The Tribunal highlighted in its judgment the duty of every employer to treat its employees with dignity and respect at work. In this case, AJ Troalic & Sons Ltd had a duty of care to ensure that Mr Kinsey worked in a safe environment which included freedom from bullying. This protection was not adequately afforded to Mr Kinsey and, as a result, there was a fundamental breach of contract on the part of the Company. As such, Mr Kinsey was entitled to terminate his employment without notice by reason of his employer’s bullying conduct.

What is bullying?

Generally speaking, bullying behaviour consists of one person doing something which is unwelcome, unwarranted and causes a detrimental effect to another person.

Examples of unacceptable bullying behaviour at work include

  • spreading malicious rumours or insulting someone;
  • copying memos that are critical about someone to others who do not need to know;
  • ridiculing or demeaning someone or setting them up to fail;
  • exclusion or victimisation;
  • overbearing supervision or other misuse of power or position;
  • deliberately undermining a competent worker with constant criticism.

Bullying may be obvious or it may be insidious. As in the Troalic case, people being bullied may appear to overreact to something that seems relatively trivial to others, but which may be the “last straw” following a series of incidents.

The legal position

There is no law which entitles an employee to make a direct complaint to the Employment Tribunal about bullying. However, bullying behaviour can constitute unlawful behaviour under one or more of the following laws:

  • Sex Discrimination Ordinance: this gives protection against discrimination and victimisation on the grounds of sex, marriage or because someone has undergone (or is intending to undergo) gender reassignment.
  • Unfair Dismissal Law: there is a duty implied into all contracts of employment which requires an employer to provide a safe working environment. Breach of this duty amounts to a breach of contract on which an employee can base a claim for constructive unfair dismissal.
  • Health and Safety Ordinance: employers are responsible for the health, safety and welfare at work of all their employees. This includes not only an obligation to protect physical health, but also mental health. Stress at work is recognised as potentially harmful. Stress is defined as “the adverse reaction a person has to excessive pressure or other types of demand placed upon them”. Bullying which leads to stress can therefore result in a breach of statutory duty under the Health and Safety Law.

How to respond to a complaint of bullying

It is important that an employee who makes a complaint of bullying believes that their complaint is taken seriously. The complaint should be investigated promptly and objectively by someone unconnected with the issues complained of.

It may be possible to address the problem informally through discussion. If attempts to resolve the matter informally are unsuccessful, then it may be necessary to deal with the issue through either the grievance or disciplinary procedure.

In either case, the following principles should be adhered to:

  • the matter should be dealt with quickly;
  • a full investigation should be undertaken;
  • all those involved in the allegations should be given an opportunity to state their case and be allowed to be accompanied by a colleague of their choice (provided that person is not themselves conflicted);
  • consideration should be given to suspension if there is a possibility of the investigation being unduly influenced by the continued presence of a particular employee;
  • where the investigation uncovers bullying (systematic or isolated) steps should be taken to address the bullying including where appropriate through the disciplinary procedure.

How to pre-empt bullying at work

Many employers adopt a formal anti-bullying policy. Any such policy should include a clear statement that bullying will not be tolerated in the organisation and set out examples of unacceptable behaviour.

The policy should also set out clearly the responsibilities of managers and supervisors and the steps that the organisation will take to prevent bullying and harassment.

It is important that managers and supervisors are trained to identify instances of bullying and how to deal with grievance and disciplinary matters involving bullying at work. Unless the bullying is confronted head on, it is unlikely to go away.