Law in business

Law in business

admin / December 31, 2018

Introduction

The UK lacks explicit legislation on bullying, however, victims of bullying can utilise other statutes, laws and regulations. Also, issues of unfair dismissal need to be addressed in Alan’s case.

Workplace bullying

Whenever an employee gets into a contract with an employer, they normally state what they expect from one another. The contract possesses an implied term of acting in a trustworthy manner. Both parties expect that their relationship will be characterised by confidence and mutual trust between one another.

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In this regard, any form of bullying compromises that implied term in the contract. Although Alan’s employer was not responsible for actual bullying, he still had the responsibility to ensure that he provided his employee with a stress free environment for optimum productivity. He therefore breached his part of the employment contract (Riley, 2009).

Alan can also approach the issue in terms of breaching the employer’s ‘duty of care’. The Health and Safety At Work Act (1974) specifically states that employers need to make sure that employees’ psychological and physical well being are in order. This means that employers should look at the stress levels inherent in a workplace and deal with them accordingly. When Alan went and told Mr. Philip about the bullying, he tried to downplay it.

He even started blaming Alan for over reacting. Instead of dealing with the source of stress, Philip was drawing attention from the real problem causing the stress; which was the unruly behaviour of verbally abusive workmates. This employer was thus illustrating that he had failed in carrying out his duty of care as defined in this Act (Freedland, 2009).

The protection from harassment Act (1997) would also be applicable in this case. This Act was initially designed to protect workmates from employers who would stalk their workers. However, authorities on workplace bullying recommend the use of this very Act for protecting oneself against workplace bullying. Alan can claim harassment by his colleagues especially since they made the situation so unbearable for him at the shop floor.

As stated in the case study, Alan’s employers are liaising with the Health and Safety Executive in order to find out how the accident had occurred. Alan can possibly wait for their report to come out. If it is found that he did not intentionally cause the accident or that it was pure misfortune then he can sue his employed colleagues for defamation of character.

In this regard, the employees who were bullying him made the assumption that he was a bad person and called him those horrible names in accordance. These individuals did actually bully Alan out of work. They stigmatised him and ruined his career prospects as well.

The case of Johnson v Unisys Ltd [2001] UKHL 13 is a good illustration of this point. In the case, Mr. Johnson was able to sue for an injury to his feelings and the House of Lords ruled in his favour. It is possible for Alan to get some monetary compensation from those bullies owing to the fact that they had tarnished his name (Deakin & Morris, 2009).

A notable case on workplace bullying is Majrowski vs Guy’s & St. Thomas’ Trust (2006). The plaintiff merely wanted his employer to be held liable for the bullying that he had been subjected to at his place of work. Majrowski’s immediate supervisor and employee of St. Thomas Trust had continually bullied him. He persistently abused him, chose not to talk to him and clearly treated him differently.

Furthermore, he was given unrealistic goals to achieve and was punished severely for not doing so. This case was very important in terms of workplace bullying because most victims were uncertain about compensation.

It is possible to hold employers liable for causing workplace stress but it was not clear whether the same employers could be held liable for bullying that was caused by employees; this case illustrated that it was indeed possible. Through the use of the Protection from Harassment Act (1997), the plaintiff argued that the employer was vicariously liable for workplace bullying at his business.

It should be noted that the first hearing in a London court ruled against Majrowski. However, the Court of Appeal overturned this decision and decided that the employer was not entirely blameless in this scenario. The employers should have seen what was going on and controlled the situation. The victim proved that she had gone through continuous stress and anxiety and this is enough to have a solid case against St. Thomas Trust.

The Appellate Court stated that the employer should not have stopped at simply stating that it supports workplace harassment as this would be nothing more than lip service. They need to take it up a notch by ensuring that the individuals working for them do not bully others. This decision was seen as an effort against workplace bullying and such negative work cultures. This judgement also shows that employers have the obligation of exercising a duty of care by dealing with the possible causes of stress in the workplace.

As stated earlier, Alan was bullied by his employees and his employer was well aware of this. He instead downplayed the event and did nothing to control it. On this basis alone, Alan could sue the company for damages and get compensated for his subjection to workplace bullying.

Generally speaking, the UK does not recognise bullying as an actionable item in law. Nonetheless, victims of workplace bullying like Alan need to identify all the latter mentioned areas of law and then frame his case around them. It should be noted that Alan is male just like his employer; consequently, he cannot base his case on discrimination based on gender.

Furthermore, he is of the same race as Mr. Philips and therefore cannot allege discrimination based on race. In the case study, Phillips tells him to get his ‘gay little arse out of here right now’. It is not clear whether he is gay or not. Even if he was, Alan cannot sue his employer on allegations of discrimination based on sexual preference because this aspect is not yet covered in UK law.

Unfair dismissal

In this case study, Alan was simply sitting on a chair and rocking back and forth. Mr. Philips was feeling very moody and it is possible that he made the decision to fire him because of influences from those feelings. Furthermore, he did not have any justifiable reason for making the decision; all he stated was that he was tired of Alan’s whimpering and this in no way is a far reason to dismiss any individual (Wedderburn, 1986).

The Employment Act 2002 clearly states that all employers need to go through a three step Statutory Dismissal procedure before dismissing an employee. First, they need to give their grounds for taking the dismissal action. Secondly, they should hold a meeting and put this decision in writing.

Lastly, if the decision is appealed by an employee then the employer should go back to the second step. Any decision that does not follow these procedures immediately becomes an unfair dismissal. Since Mr. Phillip did not follow any of these procedures then by default that dismissal was unfair. Alan can get compensated for this fact alone.

However, he can take it a step further and prove that the dismissal was also unfair due to the circumstances of the case. He was discriminated against for his stress related situation and Alan can argue that this was an unfair reason for doing so.

The case of Johnson vs Unisys Ltd [2001] UKHL 13 is particularly relevant to this argument. The claimant- Mr Johnson was a 52 year old worker who had been employed by Unisys Ltd. He was fired from his job because of an irregularity. This dismissal took such a heavy toll on him because he started to drink and even suffered from a psychological illness.

He affirmed that he had not been given a fair chance to be heard and so opposed that decision. With this in mind, he claimed that the way in which he was dismissed was also a breach of mutual trust and confidence. In this regard, the court ruled that he would be allowed to get compensation for dismissal based on the manner in which it was done.

However, Parliament intended to minimise the amount of claims for compensation through the statutory scheme of the 1996 Employment Rights Act. This meant that the individuals who had been subjected to unfair dismissal could do so based on breach of contract if the amount under consideration did not exceed those ones laid out in the statutory scheme. In this regard, Alan can sue for breach of contract but he must not exceed the stated limits (Collins et. al., 2005).

It should be noted that when the victim seeks legal redress for unfair dismissal then the amount compensated will be based on certain principles. First of all, the court does not intend to overcompensate or give bonuses to the complainant. Even the amount that can be awarded needs to be based on the loss that the affected employee has gone through. In this regard, matters such as injury to feelings will not really affect decisions made by the court. However, the court can consider damages brought on by loss of future wages to the claimant.

A case that maybe very useful in explaining these principles for compensation is Norton Tool Company Ltd v Tewson (1972). In this case, the employee was unfairly dismissed since his employers did not give him a six weeks’ notice or compensation for missed wages within those six weeks.

These requirements are laid out in the Industrial Relations Act 1971. He therefore needed to be compensated for this short term loss and the court ordered his employers to do so. Also, the manner of dismissal will not be considered if it did not affect the claimant’s future prospects of getting work.

The court established that his prospects for employment were unaffected so no compensation was offered because of the manner in which dismissal was done. Future enumeration losses are also supposed to be considered if it has been shown that the unfair dismissal has an effect on the present earnings of the claimant.

In this case, the court decided that the claimant was not in a worse job than the one he had lost so his prospects for employability had not been ruined; he could not be compensated for these. Lastly, the court needed to consider protection from future unfair dismissal if the claimant had worked for his new employers for two years. Since this was not the case, then he was entitled to only a small amount that cushioned him for these circumstances.

The above case – Norton v Tewson can provide Alan a guide concerning how his case might turn out in court. First, because his employer did not follow the right procedure for dismissal then this will immediately be labelled as unfair dismissal just as Norton’s case illustrated.

The manner of dismissal may play a role if Alan can show that his prospects for getting employment have been tarnished. A compensatory amount will be attached to this.

Since Alan has not obtained a new job then he can sue for the loss of future payments. However, he will only receive this compensation if he can show that he has really tried to look for employment and not found any. Also, he needs to illustrate that these prospects are directly related to the fact that he has been unfairly dismissed by Phillip.

Another relevant case is Bowater v Northwest London Hospital NHS Trust [2001] EWCA Civ 571. This illustrated how complex unfair dismissal can be. In the case, the appellant had been discharged from work because of making a “lewd” remark during administration of her services.

She had also used an unethical method to restrain the patient under consideration while making that remark. The Employment Tribunal decided that the respondent had unfairly dismissed her owing to the fact that they had no adequate restraining policies and that her remarks were actually humorous in certain contexts.

On the other hand, the employer decided that they would appeal through the Employment Appeal Tribunal -EAT and here the decision by the Employment Tribunal was overturned after the EAT decided that the Northwest London Trust was well within its right to summarily dismiss this employee for her gross misconduct.

From the decisions in this case, Alan first needs to realise that even if he wins in a county court, the judgements could be overturned by the appellate court. Furthermore, he should be aware of the complexities involved in determining unfair dismissal based on the details of the case (Kahn-Freund, 1972). Therefore, he would be better off sticking to the argument of wrongful procedure.

Conclusion

Alan has a strong case against his employer. First, he can sue him for allowing workplace bullying to continue in his business despite notification from Alan. Case law illustrates that employers have been forced to pay for employee’s bullying practices. He should also sue for unfair dismissal owing to wrongful procedure as Philip did not follow prescribed standards for dismissing an employee.

References

Bowater v Northwest London Hospital NHS Trust [2001] EWCA Civ 571

Johnson vs Unisys Ltd [2001] UKHL 13

Norton Tool Company Ltd v Tewson [1972] ICR 501

Majrowski vs Guy’s & St. Thomas’ NHS Trust [2006] UKHL 34

Collins, H. & Ewing, K. & McColgan, A. (2005). Labour Law, Text, Cases and Materials. London: Hart

Deakin, S. & Morris, G. (2009). Labour Law. London: Hart

Freedland, E. (2009). ‘Employment’ in H Beale et al. (ed), (2009). Chitty on Contracts. London: Sweet and Maxwell

Kahn-Freund, O. (1972). Labour and the Law. London: Hamlyn Lectures

Wedderburn, K. (1986). The Worker and the Law. London: Sweet and Maxwell

Riley, S. (2009). Brasteadworth College – How Workplace Bullies Get Away with It London, Chipmunka Publishing

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