Until recently a worker suffering bullying and harassment from other workers, and who was eventually forced out of his job through lack of support from the management would most likely not be able to seek redress at an employment tribunal. It was enough to defend the company, that its harassment and bullying policy was written in the staff handbook. Implementation of the policy was not necessary.
Employers who had the right sounding policies in place, or who paid lip service to the health of their workers, would also escape the consequences of stressful work practices that made their workers ill.
In the case of Sutherland v Hatton for example, before an employer could become liable for psychiatric injury caused to a worker, the injury would have to have been 'foreseeable'. If the worker managed to overcome this hurdle, the employer would still not then be liable for the injury caused, if he had offered counselling services to his employees.
The Equal Treatment Directive 2002 considers harassment as having taken place when unwanted conduct related to the sex of the person occurs with the purpose of violating the dignity of the person and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her. The only problem with this directive is that the employer can escape liability if it can be shown that he took reasonable steps to prevent discriminatory behaviour on the part of his employees.
Recent court cases have however given workers hope that employers who turn a blind eye to bullying and harassment in the work place, or who overwork their employees, will not escape the consequences of their behaviour.
In Walters v Metropolitan Police, the House of Lords recognised that the employer was obliged to prevent ill treatment or bullying of his workers. The judgement stressed that in order for the employer to be liable, he would need to know about the harassment and yet not prevent its occurrence.
The Working Time Regulations (following an EU Health and Safety Directive) were at issue, whereby an employer may not force the employee to work more than 48 hours per week. These Regulations were introduced in the interests of workers' health to prevent overworking and the absence of rest breaks.
In the case of Hone v Six Continents Retail Ltd whereby the claimant was, without his consent working for 90 hours weekly, the court made it clear that when determining whether a psychiatric injury was reasonably foreseeable, the employer's breach of the WT Regulations would be taken into account.
The decision in Green v Deutsche Bank Group Services Ltd is undoubtably a watershed judgement as regards employees being able to hold employers responsible for stress, and bullying and harassment by co-workers. This judgement, whereby Green was awarded £800,000 for the Bank having breached its duty of care towards her, and having been vicariously liable for the bullying of colleagues (the employer is responsible for the wrongs of its workers done during the normal course of work) implemented a strict liability of the employer under the Protection from Harassment Act 1997.
In the past it was almost impossible to seek redress for psychiatric injury, stress, bullying and harassment unless this could be linked to one of the forms of illegal discrimination, such as sex or race discrimination, or disability discrimination.
The situation for a worker suffering from stress, harassment or bullying, yet not fitting into the discriminatory mould, does now seem to have changed for the better.
It is now possible to envisage advising a worker suffering from work induced stress, harassment or bullying, but who would not fit into one of the traditonal areas of discrimination, to leave his/her work, and claim constructive unfair dismissal.
Before taking any course of action, it is of course always necessary to first seek advice.
© Workrep 09 / 09 / 2006