Sixty per cent of people say workplace harassment has become increasingly common, figures from the Chartered Management Institute (CMI) show.
Indeed, Hell’s Kitchen and other television reality shows arguably legitimise rudeness and what might be construed as harassment. Such behaviour is acted out everywhere, from the playground to the boardroom, and the National Association of Schoolmasters Union of Women Teachers has attacked such shows for giving bullies excuses for their behaviour.
But a unanimous House of Lords decision, handed down on 12 July 2006 in Majrowski v Guy’s and St Thomas’ NHS Trust, has added teeth to the Protection from Harassment Act 1997, which seeks to provide protection against bullying and similar harassment at work. An employee brought an action against his employer for harassment by the manager, in which the Lords held that the employer was both "vicariously liable" for the actions of the manager but also "strictly liable". The employee alleging harassment would previously have taken action only against the perpetrator.
Vicarious liability is second-hand - or substituted - liability arising from the actions of another, for whom you have some form of responsibility or control.
Strict liability means that it is no defence that the employer took reasonable steps to prevent the employee from doing the acts complained of.
what is harassment?
The ruling means that, in future, employers will be liable if the harassment occurs, whether or not they knew about it and whether or not they took all reasonable steps to prevent such behaviour happening in the first place.
Conciliation service ACAS says bullying and harassment is defined as "unwanted conduct that violates people’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment". This may be persistent or an isolated incident.
Mark Shrives, employment partner with Hammonds solicitors in Leeds, says employers need to consider new ways of dealing with bullying and harassment in the workplace. "There is a lot of work being done by schools to combat bullying and harassment, which is potentially capable of being translated into the work context."
He says that, rather than training employees on what they should not do in the workplace, they should focus on improving their interpersonal skills and talk to their work colleagues about issues.
Andrew Lightburn, employment law specialist at another Leeds legal firm, Shulmans, says the only effective defence is prevention. "In the event that a grievance is made by a victim of bullying, it should be dealt with promptly and any employee found to have committed an act of bullying should be disciplined appropriately."
Jacky G Lesellier, managing director and founder of continental baker and patisserie Bagatelle, which has a factory in Park Royal, north-west London, and a shop in South Kensington, employs 10 different nationalities of staff. Apart from having to sack some people for making racist comments when he first arrived, he says, after 20 years in London he has not found inter-employee harassment to be an issue. He believes this is because he lays down firm rules about equality and respect at work and expects everyone to abide by them.
times have changed
Legislation and culture has changed things. The 61-year-old recalls people were "more rude" when he started work. "When you made mistakes at work, you sometimes got a boot in the arse - and you always remember that when you do the same job," he says.
If a business has a good management team, then its owners get a daily report of what is going on, so they would be aware if there was anything untoward happening, he adds. "Sometimes, if people are a bit rude, we tell them they cannot do that and tell them how to behave. You have to say there is a line not to be crossed."
Bob Butler is a joint partner with Claire Stein in Otterton Mill’s Organic Bakery, near Budleigh Salterton, Devon. He employs 52 people and says that, in four years, there have never been issues of harassment in the bakery. "We have a particular image and ethos. I’ve never allowed that to happen and people know that. We are fair and assertive at work."
But you will always get certain frictions between staff, he believes. "You can’t have 50 people working together without that happening. You have a quiet word with someone and ask them what’s going on. Most people get on well with each other."
Butler, who describes the House of Lords ruling as "nonsense", says: "Common sense and an ethical policy govern most of what we do here."
lords’ ruling is ’awful’
Diane Turner, a partner in Diane’s Pantry in Reepham, Norfolk, describes the House of Lords ruling as "awful". She says that, although she only has two or three staff members, harassment could take place no matter how many people were employed in one place. "We certainly get niggles, but I wouldn’t have said you could call it harassment. But then maybe you don’t know it all."
She says she once lost a member of staff, possibly two, because of the behaviour of another employee. "There was a difference of character. That member of staff has gone now. They didn’t have the authority, but liked telling other people what to do. They were particularly bossy."
Turner reckons harassment was more commonplace 30 years ago, when she started out, and employees were made to feel inadequate. She worked in the catering department in Norwich Hospital, where she was made to peel vegetables all day. "It was a different generation," she says. "You said, ’Yes sir, no sir, three bags full sir’. Now you [employers] hardly dare to do anything. You have to be very careful these days."
Jo Causon, director of marketing and corporate affairs at the CMI, says there is a major gap between what managers say they do to deal with harassment and the experiences of those who are being bullied at work.
"No single off-the-shelf policy will suit every organisation, but the organisational culture and management style should make it clear that bullying is unacceptable. Shying away from the issue is no excuse," he says.
UK charity Ban Bullying at Work claims bullying is the leading cause of stress-related illness and the leading complaint from employees.
Lyn Witheridge, founder, says: "We want both employers and employees to recognise how their own behaviour could have a negative impact on their colleagues and working environment." n