Workplace bullying, harassment, stress and personal injury
Court judgements in cases with relevance to bullying

Judgements in cases with relevance to bullying

Job performance

Polkey v Dayton (AE) Services [1988] AC 344; [987] 3 WLR 1153
- Lord Bridge said that a relevant factor in dismissing an employee might be whether the employee was warned that their performance was not satisfactory: "in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show he can do the job"

Natural Justice; Impartiality of Investigator

R v Chief Constable of Merseyside Police Ex-Parte Bennion, 2000, IRLR 821
-       A chief constable conducted a disciplinary hearing against an officer who had an unresolved sex discrimination complaint against Merseyside police. As the chief constable had a statutory responsibility for the sex discrimination complaint, even though he was not personally involved, the High Court thought that there was cause for concern about his impartiality. They said that if there is any doubt about an employer's partiality, the applicant should be favoured.
-       In practice this now means that if an employee has an outstanding grievance or an unresolved claim against the employer, the most senior executives may not be able to hear any disciplinary hearings otherwise their partiality may be questioned and the procedures may be found to be defective. It highlights the need for caution in disciplinary action where the individual has an existing grievance.

Failure to Perform a Risk Assessment

Hardman v Mallon (t/a Orchard Lodge Nursing Home), All ER (D) 439, June 2002
-       Hardman's job involved heavy lifting, but Mallon did not undertake a risk assessment as required under Health & Safety Regulations when Hardman announced her pregnancy. She brought a tribunal claim, arguing that failure to undertake a risk assessment constituted sex discrimination under section 1 of the Sex Discrimination Act 1975.
- The tribunal found there had been no discrimination because Mallon had not treated Hardman any differently to a man, or a woman who was not pregnant. The tribunal held that section 1 was incapable of being interpreted to widen the definition of discrimination to encompass an employer's failure to treat a woman more favourably than a man. Hardman appealed on the grounds that the tribunal had interpreted the SDA too narrowly.
- The appeal was allowed. A woman's biological condition during and after pregnancy had to be protected. One way was by carrying out a risk assessment. Failure to do so impacted disparately on pregnant workers and amounted to discrimination. The tribunal's failure to construe the SDA in this way meant it failed to give effect to Council Directive 92/85, whose purpose was to introduce measures to encourage improvements in the health and safety at work of pregnant workers.

Series of minor incidents amounting to a fundamental breach

Lewis  v Motorworld Garages [1986] ICR 157; [1985] IRLR 465 CA
- A series of minor incidents taken together could destroy the mutual trust and confidence and thus amount to a fundamental breach; Furthermore the employee was also allowed to rely on (unilateral demotion as evidence of) the employer's breach of an implied term, even though he had waived his right to treat it as a repudiatory breach.

Logan v Commissioners of Custom & Excise EAT/686/00, 23.05.02
- In bringing a claim of unfair constructive dismissal, an employee must either point to one particular fundamental breach, or show there has been a series of actions by the employer that cumulatively amount to a fundamental breach of the implied term of mutual trust and confidence. 
- The latter scenario is known as the 'last straw doctrine', where, faced with yet another breach by the employer, the employee treats that breach as the last straw and resigns. It is not necessary that any of the breaches amount to a fundamental breach when considered individually.
- In Logan v Commissioners of Custom & Excise EAT/686/00, 23.05.02,
Logan sued her employer for constructive dismissal, relying on a series of breaches with an 18-month gap between the first and the last. The first breach, in 1997, was her employer's failure to deal with her grievance fairly, or abide by its own contractual procedures. The second involved her alleged treatment during two interviews with her employer in 1999.
- Logan argued that her treatment at the interviews amounted to the last straw in a series of acts of poor treatment by the employer, which entitled her to consider herself constructively dismissed. The employers succeeded in persuading the tribunal that too much time had passed between the two events for Logan to rely on the 'last straw doctrine'. However, the EAT overturned this decision.

Timing of resignation

WE Cox Toner International v Crook [1981] IRLR 443 (EAT)
- Following a repudiatory breach by the "guilty" party, at some stage the innocent party must elect between affirming the contract, or accepting the repudiation… But he is not bound to elect within a reasonable or any
other time. Mere delay (unaccompanied by any express or implied affirmation of a contract) does not constitute affirmation… But affirmation can be implied by prolonged delay to affirm or accept. However, if the innocent party further performs the contract to a limited extent, but at the same time makes it clear that he is reserving his right to accept the repudiation at a later date, or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation.

Compensatory award for Injury to feelings

Johnson v Unisys Ltd [2001] IRLR 279 HL
- Lord Hoffman stressed that employment tribunals can award compensation for unfair dismissal as they consider "just and equitable", and he could see "no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life".
- This is potentially the most significant aspect of the ruling in Johnson. Until now, the orthodox view of unfair dismissal compensation was that it was limited to actual financial loss flowing from the dismissal - for example, where there was clear evidence that mental distress caused by the manner of dismissal made it more difficult for the individual to find another job.

Links

Tim Field is not a legal professional and regrets he is not able to act as an expert witness. Information is given in good faith. In all matters consult a competent qualified professional.

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Lots of information and ideas for tackling bullying including the legal aspects
Action Home Page | Action to tackle bullying
Guidance for employers on policy development
Bullying and the trade unions | Bullying and the law
Case law on bullying, harassment, stress and personal injury
Court judgements in cases relevant to bullying
Long v. Mercury Mobile Communications Services
Hatton Barber et al: 16 practical propositions for a personal injury case
Right to be accompanied | The need for risk assessment
High Court injunction to prevent unfair dismissal | Obstruction to justice
Bullyonline action forum for validation and re-empowerment
UK Dignity at Work Bill | Swedish law on Victimization at Work
Bullying and human rights | Waters v. London Metropolitan Police
Barber v. Somerset County Council
Zimmerman: retaliation in the US courts
Bullying history: books, articles and publications since 1992
How to lobby your MP: example letter and summary of inadequacy of UK law
Amicus Campaign Against Bullying At Work (CABAW)
Tim Field's written submission to the Dignity at Work Bill debate
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Tim Field's book Bully in sight validates the experience of bullying and
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