ANTI-BULLYING HELPLINE

Added 2/2/08. This information updates s.36.4.5 in The Voluntary Sector Legal Handbook 2nd edition.
The not-for-profit section of trade union Unite (formerly Amicus and T&G) has set up an anti-bullying "hot mail" where victims or witnesses of bullying can report workplace bullying in voluntary sector organisations. The union says that bullying is the major issue facing voluntary sector staff, perhaps due to lack of training for managers and the increasing pressures that workers are put under in the sector. Information is at www.amicustheunion.org/Default.aspx?page=7298, and the dedicated email address is banbullying@unitetheunion.com.

BULLYING AND HARASSMENT

Updated 14/11/05; links updated 22/12/05. This information updates s.36.4.5 and 33.4.2.2 in The Voluntary Sector Legal Handbook 2nd edition.
To coincide with "Ban bullying at work" day on 7 November 2005, ACAS issued a new e-learning package on bullying and harassment. The package is free at www.acas.org.uk, but online registration is necessary.

A wide range of posters, stickers and leaflets are available at www.banbullyingatwork.com.

The Chartered Management Institute, in association with Acas and Unison, issued on 16 August 2005 Bullying in the workplace: Guidance for managers, a simple but useful A3 leaflet. It can be downloaded from www.managers.org.uk/bullying. It prints out tiny on A4 but the website has an email address for ordering hard copies.

ACAS's guides on bullying and harassment, summarising the law and with guidance on policies, procedures and claims, were updated in March 2005. The guide for employers is at www.acas.org.uk/media/pdf/e/e/AL04_1.pdf and the one for employees is at www.acas.org.uk/media/pdf/2/f/AL05_1.pdf.

In a very significant case in July 2004, the House of Lords overturned the Court of Appeal's decision in Dunnachie v Kingston upon Hull City Council that compensation for psychiatric damage or injury to feelings can be awarded in cases where an employee is the victim of harassment or bullying, and is subsequently dismissed or resigns and claims constructive dismissal. The House of Lords decision confirms that compensatory awards in unfair dismissal cases are limited to economic loss, although awards for injury to feelings can still be made in discrimination cases. For the decision click here (the web address is too long to show on screen).

In another significant case in March 2005, Majrowski v Guy's and St Thomas's NHS Trust, the Court of Appeal has said that an employer can be held vicariously liable under the Protection from Harassment Act 1997 for harassment by its employees, provided there is a sufficiently close connection with employment. This means an employee who is harassed, bullied, or perhaps even given a series of unreasonable instructions by another employee can sue the employer. The case is at www.bailii.org/uk/cases/UKHL/2004/36.html.

VICARIOUS LIABILITY FOR HARASSMENT

Updated 25/9/06. This information updates s.36.4.5 and 33.4.2.2 in The Voluntary Sector Legal Handbook 2nd edition.
The House of Lords confirmed on 12 July 2006 that an employer can be held vicariously liable not only for an employee's breach of a common law duty such as negligence, but also for an employee's breach of a statutory duty unless the statutory provision explicitly excludes such liability.

Confirming the court of appeal decision in Majrowski v Guy's and St Thomas' NHS Trust, the House of Lords said that an employer can be liable under the Protection from Harassment Act 1997 for harassment by its employees, provided there is a sufficiently close connection with employment. An employee who is harassed, bullied, or perhaps even given a series of unreasonable instructions by another employee can now take action against the employer, with a six year time limit rather than the three or six months limit for most other harassment claims. The employer's statutory defense (that they took all reasonable steps to prevent harassment) is not available to employers. The only way an employer is not liable would be to prove that there is no connection between the offender and the activity of their employment.

The Majrowski decision is at www.bailii.org/uk/cases/UKHL/2006/34.html.

ACAS has published Workplace Bullying and Harassment: Building a culture of respect, with suggestions and advice for employers on the new ruling and how it will affect the workplace. It is at www.acas.org.uk/index.aspx?articleid=401.

CIPD GUIDANCE ON STRESS

Updated 3/4/07. This information updates s.36.4.6 in The Voluntary Sector Legal Handbook 2nd edition.
CIPD published in March 2007 three new resources on managing stress: Managing stress at work: A competency framework for line managers, Line management behaviour and stress at work: Guidance for line mangers, and Line manager behaviour and stress at work: Advice for HR. These and CIPD's other resources on stress management are at www.cipd.co.uk/subjects/health/stress.

DEALING WITH WORKPLACE STRESS

Updated 20/8/05; links updated 22/12/05. This information adds to s.36.4.6 in The Voluntary Sector Legal Handbook 2nd edition.
The DTI issued on 13 July 2005 Work-related stress: A guide, intended to help employers reduce stress at work. It's only eight pages, doesn't say much, and is 3.23MB so takes ages to download even with broadband. It's at www.dti.gov.uk/er/work_related_stress_guide.pdf. The TUC's guide to the Health & Safety Executive's management standards for work-related stress, issued the day after the DTI's publication, is far more useful. It is at www.tuc.org.uk/h_and_s/tuc-10147-f0.cfm.

The management standards, launched in November 2004, were originally intended to form the basis for a legal code on reducing workplace stress are non-legislative. They are at www.hse.gov.uk/stress/standards/index.htm.

At the same time as the standards were published ACAS published an advisory booklet Stress at work, at www.acas.org.uk/media/pdf/l/m/B18_1.pdf. And the International Stress Management Association published, with HSE and ACAS, Working together to reduce stress at work: A guide for employees. It can be accessed from the stress management standards website (see above). The HSE, ACAS and ISMA publications overlap but are different: the ISMA leaflet is intended primarily for employees, the ACAS booklet suggests practical steps that employers can take, and the HSE standards are intended primarily for larger organisations that want to benchmark their performance against other organisations.

The publications help to clarify the duties of employers under their duty of care and the Health and Safety at Work Act. They build on case law such as the Sutherland v Hatton judgment in February 2002 relating to four appeals in cases of work-related stress, where the Court of Appeal provided guidelines setting out 16 principles for such cases. It said that employers can usually assume that an employee can tolerate the normal pressure of work, unless the employer knows of a particular problem or vulnerability; all occupations or jobs should be assessed on the same basis, and none should be seen as intrinsically harmful to mental health; and employers are generally entitled to take at face value what they are told by their employees, unless the employer has good reason to believe otherwise. The judgment is at www.bailii.org/ew/cases/EWCA/Civ/2002/76.html.

But in a subsequent case, Young v Post Office, the Court of Appeal said that when an employee has had a work-related psychiatric illness, the employer should be aware that the employee is potentially vulnerable, and has an obligation to make the work environment less stressful. This applies even if the employee does not say that s/he is feeling stressed and finding it difficult to cope.

On 1 April 2004 the House of Lords reached a similar decision in Barber v Somerset County Council, in relation to a school head of maths who had had time off work for stress and depression and subsequently had a breakdown. The House of Lords said the senior management team should have made "sympathetic enquiries" about his condition, taken steps such as reducing his workload to ease the pressure on him, and monitored the situation. This decision is at
www.bailii.org/uk/cases/UKHL/2004/13.html.

On 19 January 2005 the Court of Appeal, in six linked cases, confirmed the 16 principles in Hatton. But it also emphasised that the principles do not set out statutory duties, and every case of work-related stress must be dealt with on the basis of that particular employer's duty of care to its employees in general and that particular employee. Some of the points raised in the judgment are:

• the fact that an employee does not take up counselling offered by the employer does not necessarily absolve the employer of responsibility;
• if an employer foresees that an employee or group of employees might suffer psychiatric illness but does nothing about it, it can't later argue that it did not foresee the illness (this case involved the Home Office not following its own guidance about steps to be taken in the event of a traumatic incident in a prison);
• the fact that an employer offers an occupational health service does not mean that it has foreseen that employees might suffer psychiatric illness.

PROVIDING COUNSELLING FOR STRESS IS NOT ENOUGH

Added 3/4/07. This information updates s.36.4.6 in The Voluntary Sector Legal Handbook 2nd edition.
In Sutherland v Hatton in 2002, the court of appeal set out the 16 Hatton principles on identifying, managing, and minimising the risk of potential liability for psychiatric injury caused by stress at work (see www.bailii.org/ew/cases/EWCA/Civ/2002/76.html#para43). The 11th principle is that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of its duty of care to the employee.

But in a decision in February 2007, the court of appeal made clear that if an employer knows that an employee is suffering from stress but does not take steps to reduce the stress (for example, by reducing the employee's workload), the mere fact that the employer provides a counselling service is not in itself enough to absolve the employer from liability. The decision in Intel Incorporation (UK) Limited v Daw is at www.bailii.org/ew/cases/EWCA/Civ/2007/70.html.

HSE GUIDANCE ON ALCOHOL AT WORK

Added 18/2/07. This information adds to s.36.4 in The Voluntary Sector Legal Handbook 2nd edition.
Employers are in breach of their health and safety duties if they knowingly allow an employee under the influence of alcohol or drugs to continue working, where the employee's behaviour puts her/himself or others at risk. A free publication from the Health & Safety Executive, published in January 2007, explains the legal position on the use of alcohol at work, what employers can do, information on screening, and case studies.

Don't Mix It! A guide for employers on alcohol at work and other HSE resources on alcohol and drugs at work are at www.hse.gov.uk/alcoholdrugs`.

ADVENTURE AND TEAMBUILDING ACTIVITIES:
CLIMBING AND CAVING

Updated 30/6/07. This information adds to s.36.4 in The Voluntary Sector Legal Handbook 2nd edition.
From 6 April 2007 the Work at Height Regulations 2005 apply to anyone teaching or leading a caving or climbing activity, as sport, recreation, teambuilding or similar activities. The Work at Height (Amendment) Regulations 2007 are at www.opsi.gov.uk/si/si2007/20070114.htm.
HSE guidance is at www.hse.gov.uk/falls/downloads/waharguideactivity.pdf.