Understand the legal positions on bullying and harassment at work, and how employers and employees can address the problem.
Here we list a selection of key cases on harassment in the workplace, providing a summary of the decision and implications for employers.
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Vaickuviene v J Sainsbury plc | Court of Session | 11 July 2013
 CSIH 67
Issue: Whether a company was responsible for a murder of an employee by a colleague
Fortunately employment law decisions rarely involve murder. However, in this case a Lithuanian-born supermarket employee was murdered by a racist colleague. The murderer was a member of the British National Party and objected to working with the deceased on the basis that he was Eastern European. He frequently made racist remarks and acted in an aggressive manner.
The employee wrote a grievance to his line manager complaining about the racist remarks, but nothing was done. Two days later his colleague became aggressive again and stabbed him to death in an aisle in the supermarket.
The victim’s family argued that the employer bore responsibility for the murder because it had failed to act. It alleged that the line manager should have disciplined the colleague, which would possibly have led to his dismissal, suspension or at least a change of shift. The employer claimed that there was not a sufficiently close connection between the act and the murderer’s employment to make it responsible.
The Scottish Court of Session decided that the matter must proceed to a full hearing. The events that led to the murder began with verbal harassment and the employer was fully aware of this and did not intervene. Eventually the matter reached the Scottish Inner House which found in favour of the employer. The employee’s actions could not be regarded as connected to his responsibilities at work and vicarious liability should not therefore apply. The court was not prepared to find that employing employees to stack shelves ‘significantly increased’ the risk of them becoming the victims of a fatal assault. To make the employer vicariously liable for the actions of its employee there has to be a ‘strong’ connection between what the employer was asking the employee to do and the wrongful act. The employer must significantly increase the risk of harm by requiring their employee to carry out tasks.
The court also questioned if the murder counted as harassment under the 1997 Act, although such reasoning was not central to its decision.
Implications for employers
- All employers must deal promptly with harassment. Not all harassment will lead to murder, but an employer may not know the effect of even mild harassment so active steps are better than ignoring the issue.
- All employers should have an up to date grievance procedure covering harassment, complaints or a separate procedure.
- Managers should be trained and prepared to deal with all forms of harassment.
- This is a particularly tragic case and shows that the limits of vicarious liability can be hard to determine.
- Employers must exercise careful judgment. In extreme cases (especially involving violence) they should possibly act quickly and consider temporarily separating the employees, or perhaps even suspending one employee on full pay while investigating the grievance.
- The claim by the victim’s family was brought under the Protection from Harassment Act 1997 (PHA) which applies equally in Scotland as the rest of the UK. Originally an anti-stalker piece of legislation, it is now increasingly used against employers.
- The House of Lords’ decision in the English case of Majrowski v Guy’s and St Thomas’s NHS Trust has already decided that an employer might be vicariously liable under the PHA for harassment committed by an employee in the course of employment. In the light of the court’s comments, subsequent cases may address whether murder counts as harassment under the PHA.
- The PHA can be used to bring claims against employers for up to six years after the harassment complained of, as opposed to the usual three month limitation for discrimination harassment claims brought under the Equality Act 2010.
- PHA claims do not require psychological damage; mere distress and anxiety is sufficient.
Teggart v TeleTech UK Ltd | Northern Ireland Industrial Tribunal | 15 Mar 2012
Issue: Harassment – Social media
An employee at a call centre posted an obscene comment about the sexual promiscuity of a female colleague on Facebook. He made the posting at his home, but the posting specifically mentioned TeleTech. The woman was blocked from viewing the comment, but heard about it and asked for it to be removed, leading to a further obscene comment.
The employer dismissed the employee for gross misconduct. The employee alleged that the employer had not followed a proper disciplinary process and that that he had been deprived of his ECHR rights, namely the right under Articles 8 (right to a private life), 9 (right to freedom of thought and belief) and 10 (right to free expression).
The Northern Ireland industrial tribunal dismissed the claim and held:
- The comments contravened the employer’s dignity at work policy.
- The employer had acted reasonably in its finding of harassment.
- The sanction of dismissal was within the range of reasonable responses, given the unsavoury nature of the posting and the employee’s response when asked to remove it.
- The ECHR claims were dismissed. For Article 8, comments on Facebook are not private (even if only open to friends) as the comments can copied and circulated. Article 9 did not apply to a belief about another person’s promiscuity. The Article 10 right must be exercised responsibly which did not apply here.
Implications for employers
- There are numerous Facebook cases often concerning inappropriate postings. Employers must have a comprehensive, updated communications policy which covers all forms of social media and networking.
- Employers should be pro-active and regularly remind employees about what is responsible and irresponsible use of social media and networking.
- Employers may be vicariously liable for employee’s conduct out of work if they refuse to act upon it to protect other employees.
- Harassment need not involve comments made directly to a victim; it may be brought about by comments to others.
- Offensive comments made on social media can justify dismissal for gross misconduct even if they are made outside of work.
Conteh v Parking Partners Ltd | Employment Appeal Tribunal | 17 December 2010
Issue: Third-party harassment
A black employee was employed as a car park attendant by a company which had a contract to run parking facilities by a hospital. She worked alone in the car park and had standing instructions not to allow anyone to leave the car park without a validated ticket. (There was a special validation system for some people who visited or worked for the hospital so they could leave the car park without paying.) There were problems with the validation of some tickets, in which case they had to be validated by the employee. She refused to let a hospital manager leave without paying. As a result she was seriously racially abused by one of the manager’s colleagues who also used the car park. A further incident took place on the same evening with shouting and blocking of the exit barrier to outgoing traffic.
The employee reported the incidents to her employer who spoke to both the manager and the other member of staff who denied the abuse. The employer also reviewed CCTV footage which showed the incident, but without sound and concluded there was insufficient evidence to corroborate the employee’s claims (although it did not disbelieve her). The employer did not wish to cause problems with the hospital contract, so did not pursue it. The employee claimed the employer’s failure to investigate the matter properly and to raise it with the hospital created an intimidating and hostile environment and therefore amounted to direct discrimination and harassment under the old Race Relations Act 1976. However, the case still provides useful guidance on the Equality Act 2010, subject to slight differences explained below.
The Employment Appeal Tribunal found that the employer was not liable for the acts of harassment on grounds of race by the third parties. The acts were deemed to be outside of the employer’s control. There was nothing remotely racist about the employer’s failures – it did not want jeopardise the contract with the hospital; it was not to do with the employee’s race. An employer’s inaction can amount to creating a discriminatory environment. However in this case it was the third parties (the hospital staff) who had created the hostile environment and not the employer.
Implications for employers
- Currently employers can be liable for acts of harassment by third parties.
- However employers are not normally liable for third-party harassment that they have no knowledge of, and over which they have no control.
- Employers must investigate such acts of harassment fully, carefully and seriously and then act appropriately.
- Employers must speak to other members of its staff to investigate incidents of abusive conduct.
- Employers should inform employees of preventative measures taken to deal with such incidents in the future.
- Inaction by an employer can amount to unwanted discriminatory conduct.
- For employers to create a hostile environment the inactions usually have to make the situation worse.
- This case was decided under the Race Relations Act 1976, but under the Equality Act 2010 employers are now currently held liable if the harassment occurs at least twice and they fail to take reasonably practicable steps to prevent it.
- The law governing third party harassment may change as the government has indicated that it will consult to remove the requirement for employers to take reasonable steps to prevent persistent harassment of their staff by third parties. (This change is on the grounds that employers have no direct control over such harassment, although the current legislation does operate in such a way that the employer must know of the harassment anyway.)
Munchkins Restaurant v Karmazyn | Employment Appeal Tribunal | 28 Jan 2010
Issue: Sexual harassment
Three migrant workers who were working as waitresses brought claims of sexual harassment and constructive dismissal against their employer. They claimed that during their period of employment (between 1 and 5 years) they had been subjected to talk of a sexual nature from the restaurant owner and made to wear short skirts. They accepted that they had sometimes initiated talk of a sexual nature, but used this as a coping strategy. A female assistant manager had acted as a ‘buffer’ between the claimants and the restaurant owner, but when she left, they all found their situation untenable and resigned. Things came to a head when the restaurant owner shouted at one of the waitresses in front of her other two colleagues.
An employment tribunal and the Employment Appeal Tribunal upheld the sexual harassment and constructive dismissal claims. Even though the claimants did initiate conversations about sex, this was a defensive move to divert the restaurant owner’s attention away from them. The EAT also concluded that it was not surprising that the claimants put up with the sexual harassment for as long as they did, given that they were migrant workers and were constrained by financial pressures. Their situation was compared to that of a battered wife and putting up with a situation did not mean they welcomed it.
Implications for employers
- Employers will almost always be vicariously liable for most discrimination claims arising out of facts similar to the above.
- To help prevent such situations arising employers must have clear equal opportunities and anti- harassment and bullying policies which are regularly reviewed, updated and communicated to staff.
- When complaints arise they should be sensitively and promptly investigated and acted upon, disciplining any perpetrators if necessary.
- Employers may be jointly and severally liable with the perpetrator of the harassment, but a claimant will pursue the party with the deeper financial pockets, usually the employer.
- Employers who ignore workplace banter are taking a considerable risk.
- Even if employees appear to be willingly engaging in banter, employers should consider taking the 'Big Brother' approach and reminding all employees that such behaviour is not acceptable.
- Employers should remember that an employee may appear to be joining in because they are intimidated and whilst appearing to laugh they may be really offended and humiliated.
- Employers can only defend themselves if they can show they had taken reasonably practicable steps to prevent the other employees from embarking upon their inappropriate behaviour.
- Employers must be able to prove all employees were well aware of the standards of behaviour expected of them (for example by keeping clear records of training given and employees attending, ideally signed by all attendees to prove they were there).
- Ideally employers should keep electronic or written records to show all genuine steps they have taken to enforce equal opportunities and anti harassment and bullying policies.
- Regular communications and training for all employees should be undertaken, reminding them of the employer’s policies on equality and diversity and the consequences of breaching them.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.