November 2005 Employment Law Enews

Have You Banned Bullying?

On Monday 7 November the country marked the Ban Bullying at Work Day. With bullying at work resulting in approximately 18 million lost days every year this is clearly becoming a significant problem for employers and the victims alike.

What Is Bullying?

There is no statutory definition of bullying however, ACAS have defined it as "regular intimidation that undermines the confidence and capability of the victim. Bullying can take the form of verbal abuse, violent gestures, physical violence, allocation of blame, 'picking on' workers unfairly, public humiliation of workers, or a more 'subtle' war of words to undermine the workers confidence."

Why Do Employers Need To Ban Bullying?

Because employees who are bullied could bring the following claims against you:

• Constructive Dismissal
• Discrimination - If bullying is on the grounds of the employee's sex, race, disability, sexual orientation, religion or belief. Also as from the 1 October 2006 bullying an employee on the grounds of his/her age will also be prohibited.
• Personal Injury
• Harassment under the Protection from Harassment Act 1997 - As recently established in the case of Majrowski v Guy's and St. Thomas' NHS Trust 2005 IRLR 340.

The Protection from Harassment Act (PHA) potentially gives employees greater protection than that afforded to them under the discrimination and personal injury laws. For example, an employer can defend a discrimination claim if they can establish that they took all reasonable steps to prevent the discriminatory bullying from taking place. The PHA does not give an employer this defence. Also, unlike under personal injury law, the employee doesn't have to show that the harm they suffered as a result of the bullying is foreseeable. Finally, the type of conduct that could amount to harassment under the PHA covers a wider range of circumstances as it does not have to relate to the employee's sex, race, disability, sexual orientation, religion or belief.

What Does The Future Hold

The employer in the Majrowski case has been given leave to appeal to the House of Lord. If they do the House of Lords will have to decide whether employers should be liable for the acts of bullying by their employees under the PHA

In any event it is clear that the Government's attitude towards bullying in the work place is that they are taking the matter very seriously. A 'Dignity at Work' Bill was introduced in 2001 and despite not being passed, the Bill was widely supported and is likely to be re-introduced in the future. If passed, the Dignity at Work Act (DWA) would give employees the right to make bullying related claims, in their own right, to the Employment Tribunals or Courts. At the moment Tribunals cannot award compensation for injury to feelings and stress in Unfair Dismissal cases, however the DWA may make this possible.

What Should Employers Do?

• It is important that any complaints received by employers from their employees about bullying are dealt with correctly. Following the introduction of the new Statutory Grievance Procedures (SGPs) and the Dismissal and Disciplinary Procedures in October 2004, it is now crucial that employers deal with grievances and disciplinary issues correctly. In light of recent case and debate on what amounts a grievance letter under the SGPs it is advisable that employers treat any written complaint about bullying as a 'Step 1 Grievance Letter' and proceed under the appropriate grievance procedure.
• Employers should have in place a policy, which specifically relates to bullying and harassment in the work place and makes it clear that bullying can lead to disciplinary action.
• ACAS updated their Bullying and Harassment at Work: Guidance for Managers and Employers in February 2004. This handbook contains very useful practical advice on how to tackle issues of bullying in the workplace.

If you would like any advice or assistance on drafting or reviewing policies on bullying and grievance and disciplinary procedures, please contact our employment team at Steeles Law.

Important Notice: Incorrect Claim and Response Forms

You may already be aware that there has been confusion recently about which versions of the claim forms (ET1) and response forms (ET3) are correct.

As we have highlighted in previous editions of E-News, the Tribunals apply the time limits for submitting these forms very strictly. It is therefore essential that claimants and respondents submit the correct forms within the prescribed time limits.

The Incorrect Forms

If, like many people, you get your forms from the Employment Tribunal Service Website (www.employmenttribunals.gov.uk) you must not click on the 'Download' button on the left hand side of the ETS homepage. By doing so you will be offered the option to download the old-style, incorrect forms. These claim forms do not contain box 11, which relates to disability discrimination and box 13, for multiple cases. The response forms do not contain boxes 1.5 and 1.8.

The Correct Forms

When you enter the ETS homepage, instead of clicking on the 'Download' button on the left hand side, you must click on the 'Publications' button at the top of the page. You will then be offered the option to download the new, correct versions of the claim and response forms.

Alternatively if you do not download your forms from the ETS website, but instead use paper versions, as of 1 October 2005, you must ensure that you use one of the following:

• The Claim Form that has been available from 1 October 2004 (this is coloured purple) or,
• The Optical Character Recognition (OCR) compatible Claim and Response forms that were issued in March and September 2005 (these are coloured aqua) or,
• Large print versions of the OCR compatible forms above, also issued in September 2005.

"Dealing with Personal Disasters at Work" Breakfast Briefing

It is estimated that in 2004 stress cost the UK ecomony £13.5 billion through lost productivity and increased illness at work. But how do employees deal with personal disasters away from work such as the death of a relative or a divorce and does this impact on their effectiveness at work ? All these issues are to be dealt with at a steeles breakfast briefing for HR Managers entitled "Dealing With Personal Disasters" to be held at UEA Sportspark, Norwich on 29th November 2005 from 7.45am to 10.30 am.

Over a full English breakfast we will consider your legal duties and whether you should go further as a responsible employer as well as the essential information you need to know when faced with an employee having these problems. We are joined by Dr Trevor Cummings from Cavell and Lind Ltd occupational health specialists who will talk about identifying and managing non-work related stress and Shelagh Phillips from Cruse the leading charity dealing with bereavement and bereavement counselling." This briefing costs £40 (including breakfast), to reserve your place please call 01603 598000 or book online

This bulletin is intended for general guidance only and should not be relied upon without detailed legal advice on your specific circumstances.

This article copyright © 2005 Steeles Law. All rights reserved.