Protection for employees who complain of bullying

Despite numerous campaigns over the years it remains the case that, except where bullying is related to a protected characteristic (race, religion, disability, etc) then there is no express protection for bullying victims in employment law. In truth there are only limited legal protections.

There is of course a duty of care upon employers for the health and safety of employees. So if an employee is bullied, the employer has failed to exercise their duty of care, and there is personal injury or financial loss arising from that failure then, maybe, an employee would have a claim under a negligence type legal complaint. However, even then, proving psychiatric injury in bullying is notoriously difficult and unlikely to be viable unless a worker has the backing of an insurer or union. Note: as an intrepid commenter on this post noted (before I hastily updated it) there is also some protection through the Protection from Harassment Act 1997.

If the employee has been employed for at least two years then they will have the right to an unfair dismissal claim and could resign and claim constructive unfair dismissal on the basis that the employer has seriously damaged the contract of employment by not providing a safe workplace.

But what if the employee has not been employed for two years? It is a damning indictment of our lawmakers that there is no effective remedy to which they can cling, the choice employment law provides to an employee bullied for a reason unrelated to a protected characteristic if internal avenues are unsuccessful is to ‘put up with the bullying or leave with (almost) no remedy’.

Almost?

Before Covid 19 the phrase ‘section 44’ was little known. This refers to a (until recently) under-utilised legal right that gives an employee the right to refuse to attend work. This right is mirrored in section 100(1)(d) of the Employment Rights Act 1996, which states there should be no dismissal to an employee:

in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.

s.100(1)(d) of the Employment Rights Act 1996.

In my view that will be very difficult to establish in a bullying case, if not raised previously with employer, to succeed in this type of claim, and the “could not reasonably have been expected to avert” requirement would be particularly problematic. However, an old EAT case confirmed that there was no reason in principle why the danger to health from bullying from fellow workers is not covered by this provision. In Harvest Press Ltd v McCaffrey (1999) the risk of abuse by a fellow worker was sufficient to amount to a danger an employee was entitled to rely upon.

Protection if complaint made

Strangely, while the rights of a person being bullied are almost non-existent unless they take the drastic step of relying upon section 44 there is a modicum of greater protection if a person actually complains to an employer they are being bullied and is then targeted for raising that concern.

Consider a situation where we have an employee who has been employed for 15 months and complains he has been bullied by co-workers to his manager. He has passed all his performance reviews and no concerns have been raised about his conduct or performance. Then, all of a sudden after raising the concern, he is suspended and told he is being investigated for gross misconduct. The investigation is completed and he is dismissed without ever really having had the concerns about his conduct explained to him.

There are five potentially fair reasons for an employee to be dismissed, the most common being redundancy or conduct. It will surprise no-one that raising concerns about being bullied is not one of those potentially fair reasons for dismissal but that does not really help as without a right to claim ‘ordinary’ unfair dismissal the reason for dismissal is in most cases unchallengeable (however unfair they may be).

There are still two potential complaints an employee could allege, however. In these complaints whether the employer followed a fair process is, unfortunately, not too relevant as what matter is the reason why the decision to dismiss was made, not whether this was a fair process. And here, the reason an employer gives will always by reasonable, it just may not be true!

The first option is that the complaint was a protected disclosure (aka whistleblowing) and that any disciplinary action was because of that disclosure. However, unlike in days past where all that was required in order to be a protected disclosure was that the employer broke a legal obligation to the employee the complaint now needs to be in the public interest (which means any complaint of a purely private nature will not be a protected disclosure). Since most complaints will be about being bullied personally alone then it is unlikely this is an option.

However, section 100(1)(c) of the Employment Rights Act 1996 also states an employee who “brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety” is protected from dismissal for having done so (that is, if the reason for dismissal was that disclosure).

I have searched a number of first tier tribunal decisions and cannot see any that allege an unfair dismissal by reason of bullying complaints under s.100(1)(c) but on the wording then if the complaint raises concerns that an employee’s health is being affected by the situation, and given that lead given by the McCaffrey case (where the language is of danger rather than the tamer ‘harmful or potentially harmful’ language in this cause), it does seem that any detriment to an employee because of that disclosure would give an employee the right to cogently allege they have been automatically unfairly dismissed.

As with all such cases the real focus is on whether it is the disclosure that is the principal reason for the dismissal rather than just part of the factual background.

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2 thoughts on “Protection for employees who complain of bullying

  1. Thanks, as ever. This is probably me not keeping up with things, but I thought the Protection from Harassment Act 1997 (Michael Howard, trying to protect Lady Di from being stalked rather than promote new protections for workers, with criminal and civil enforcement routes) has been used in employment contexts (a House of Lords case something like Majrowski? about 10 years later). Has that access been curtailed by subsequent cases?
    Thanks for what you do, which I have appreciated over the years.

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    1. Daniel, thanks – no it is not you keeping up, it is me being crap! 🙂 You’re right this would provide a remedy and I think still relevant albeit hard and expensive to successfully deploy. Another one enacted for a different purpose, but shoe-horned into an employment context. Will update the post when i can.

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