Neil Crossley of law firm DLA Piper Rudnick Gray Cary offers employers advice on dealing with claims of bullying in the workplace and reducing the risk of receiving discrimination claims from victims

The problem
An assistant in the accounts department of a large hotel chain has complained that her colleagues never say “hello”, “good morning” or “have a nice weekend”, and exclude her from trips to the pub after work. Surely the employer cannot insist that her colleagues become friends with her?

The law
The various discrimination laws applicable in the UK prohibit employees from being harassed at work or victimised on grounds of sex, race, religion, disability and, from next year, age. Employers are also under an obligation to maintain the trust and confidence of their employees, and if they fail to do so the employee may resign and claim constructive dismissal.

New laws introduced in October 2004 place onerous obligations on employers to resolve employee complaints in house, with the risk of increased compensation awards where this doesn’t happen.

Expert advice
The first obligation is to listen. The employer must not dismiss the complaint out of hand on the basis that it seems frivolous. Steps should be taken to ascertain whether the employee wants to use the grievance procedure or whether she wants the complaint to be dealt with on an informal basis – eg, by way of conciliation.

If the employee is denied the opportunity to raise the matter formally the employer risks breaching the relationship of trust and confidence, allowing her to resign and claim constructive unfair dismissal.

Where an employee has been ostracised or “sent to Coventry”, an employment tribunal could also uphold a complaint of constructive dismissal if the employee resigned. If the conduct complained of is in any way related to sex, race or religion (or from October 2006, age) there is a risk of claims of harassment under the relevant discrimination act and also of victimisation if the employer refuses to listen.

The employee may be the only member of the department from an ethnic minority, for example. If the conduct of her colleagues is on the grounds of her race and creates a hostile working environment for the employee, this could amount to racial harassment for which the employer may be vicariously liable. “Victimisation” has a special meaning in employment law, and is where an employee is treated unfavourably because they have complained about discrimination. Refusing to entertain a grievance is the classic way that an employer can victimise an employee.

An employer can insist that employees deal with each other courteously. If a clique deliberately excludes an employee at work, this is a form of bullying. If the trips to the pub are department-wide, the employer can suggest all of the team should be included. In most cases an informal intervention by way of counselling for the team should work. 

Check list
Ensure you have in place the following policies and procedures relevant to situations of this type:

• A grievance procedure.
• A bullying and harassment procedure.
• An equal opportunities policy.

Make sure managers are properly trained on how to deal with complaints made under the grievance or bullying and harassment procedure.
Make all staff aware of the organisation’s commitment to equal opportunities and zero tolerance of discrimination, harassment and bullying, for example by including an equal opportunities session as part of your induction programme

Beware!
Compensation for a successful constructive dismissal claim can be as much as £60,000. There is no cap on what can be awarded in a discrimination case, and damages can cover loss of earnings as well as compensation for injury to feelings of up to £25,000.

Last year in the UK the maximum award – covering both lost earnings and injury to feelings – for a race discrimination claim was about £170,000, for sex discrimination nearly £180,000, and for disability discrimination nearly £150,000.

Contacts
Neil Crossley, DLA Piper Rudnick Gray Cary, 0161-235 4042
neil.crossley@dlapiper.com
www.acas.org.uk