How can employers prevent discrimination and bullying in the workplace and what systems should they have in place? Do enough employers make use of employee assistance programmes, by providing an independent and confidential counselling service for example? Rachel Dineley, a partner, heading the Discrimination Unit, and Paula Jefferson a partner specialising in Injury Risk at national law firm Beachcroft LLP report.

Employers have, over the years, become familiar with discrimination law, as it relates to harassment in the workplace. They know that, in principle, they should be able to defend a claim, if they can show that they took such steps as were reasonably practicable to prevent the kind of conduct complained of.

In reality the defence is rarely new – all too often employers have paid lip service to their equal opportunities policy and have done too little by way of training on discrimination and active promotion of good behaviours in the workplace.

The time is ripe to review employment practices in the light of a new threat to employers, who can be liable for workplace harassment, whatever preventative measures they may have put in place.

The Protection from Harassment Act (PHA) was introduced in 1997 with the specific purpose of addressing the issue of stalking. It makes provision for both civil claims and criminal prosecutions. However, it has now become the new route for claims for damages in the County Court or High Court, arising from alleged harassment in the workplace.

Under the PHA, harassment entails a course of conduct, (involving two or more occasions), which the perpetrator knows or ought to know amounts to harassment of the victim and which causes the victim alarm or distress.

In a recent judgment the House of Lords accepted that an employer can be vicariously liable for a breach of the PHA by its employee. If an employee is found to have acted so as to be in breach of the PHA then the employer automatically becomes liable for the damages awarded as a consequence. It is irrelevant what steps the employer had taken to try to ensure that no such behaviour occurred.

This makes it difficult for an employer to defend itself against possible claims because the defence which would be put forward in a claim based on discrimination, before the Employment Tribunal, is not available. There are a number of issues which give cause for concern for employers and their insurers. These include:

• The fact that the limitation period for a PHA claim is six years and not the three months applicable to the Employment Tribunal or the three years applicable for a personal injury claim arising as a result of negligence or breach of other statutory duty. In practice, an employee will be able to bring a claim years after the events occurred, when it will be very difficult to conduct a proper investigation. It is vital that any suggestions or perceptions of harassment and bullying, as well as actual complaints, are fully investigated and documented at the time they are observed.
• Where harassment or bullying has gone unchecked an employer has always been vulnerable to a claim for negligence if it was reasonably foreseeable that such workplace behaviour would result in a breakdown in the victim’s health (a “personal injury”). However, forseeability is not relevant to a PHA claim. Thus an employer, who has no idea that an employee feels that they are being made ill as a result of harassment by another employee, may still be liable to pay them damages for the resultant stress or, worse still, psychiatric injury. It is vital therefore that performance and conduct is routinely monitored and employees feel able to raise any issues they have with their colleagues and line managers. There must be systems in place to allow concerns to be raised in confidence, for example if the alleged bully is in fact an individual’s manager.
• The PHA allows an individual to recover damages for alarm or distress without the need to prove psychiatric injury. The House of Lords considered that the level of damages would be low in claims under the PHA because the damages were only for anxiety. That may be correct where there has been no recognised psychiatric injury but nonetheless it provides a new opportunity for an employee to make a claim.
• If the claim is only for anxiety, issues may arise as to whether the compulsory Employer’s Liability insurance (EL) will cover the payment of any damages and costs arising as a result of the claim. Close consideration is needed of the EL wording which may well limit cover to psychiatric injury.
• There is nothing to prevent a claimant naming not only the employer but also the alleged harasser. Issues then arise as to how the employer can support both employees, as appropriate, and avoid a claim being brought, as well as whether the EL insurance will provide an indemnity to them for damages and costs.

In the light of this new development employers should take urgent action to:

• Review policies, practices and procedures which address problems of harassment and bullying.
• Monitor behaviours in the workplace, through review meetings, performance appraisals, staff surveys, exit interviews and the like.
• Promote an open culture and a supportive working environment in which bullying behaviour is not tolerated and disciplinary action is taken when it is identified.
• Provide comprehensive training (through e-learning, workshops, feedback sessions and other means) which supports good practice and tackles prospective problems.
• Provide counselling and other support, (e.g. through a confidential helpline and employee assistance programme) so that stressed employees can seek guidance on how to address and resolve workplace bullying.

Contact Rachel Dineley at [email protected] and Paula Jefferson at [email protected] for further information.