LAW SPECIAL REPORT: Bullying allegations can come from almost any direction. Constant vigilance is the only defence, says Jo Plumstead

Harassment and bullying are corrosive problems that undermine the morale and effectiveness of any workforce.

A survey carried out by University of Manchester Institute of Science and Technology found nearly half of all employees have experience of workplace bullying - and 10 per cent had been bullied in the six months leading up to the survey.

This type of issue is all too familiar in the health service, where special problems can arise. From cases we have dealt with, and conversations with managers, it is clear that what senior clinical staff may regard as no more than a robust approach in a pressured environment, can seem like bullying or hectoring to people on the receiving end.

In law, it is the perception of the person at whom conduct is directed that counts. If a surgeon is equally brusque with everyone in theatre, that will not protect the hospital from liability if a member of the team is unable to cope.

The first step to tackling this problem is preventative. It is to get those in authority to stand back and look at how they treat subordinates - and lose the 'if you can't stand the heat. . .' attitude.

However well-conceived your harassment procedures and policies are, they will only help if the whole workforce subscribes to them and they are properly enforced.

A second pitfall peculiar to the health service is that patients are vulnerable to inappropriate behaviour by employees, for which the employer is then liable if a sex discrimination claim is made.

This age-old problem is, of course, recognised and dealt with by the appropriate professional bodies, but employers must still have a strategy to deal with such allegations. They must be taken seriously and properly investigated, but care must be taken not to pre-empt the decision of a fair disciplinary procedure, running in parallel with any professional misconduct proceedings.

If procedural mistakes are made, a tribunal may make an unfair dismissal finding.

This happened in a recent case where a male charge nurse was found to have carried out unnecessary breast examinations.

It was small consolation to the employer that the charge nurse was found to have contributed to his own dismissal, or that his compensation was limited to a basic award. The trust had still been exposed to bad publicity surrounding the claim and spent a great deal of time and money defending it.

Publicity is a particularly unwelcome feature of sexual harassment claims when they come to be heard by an employment tribunal.

One way of avoiding the publicity is to settle claims quickly and quietly. Where a claim is well founded, this approach is both commercially and legally the right approach.

Where the applicant is unwilling to settle and wants their day in court, however, there is another option. A tribunal can grant a restricted reporting order in sexual harassment cases and, in deciding whether to do so, is entitled to consider protecting the alleged harasser's interests, as well as the alleged victim.

It is also possible for employers to be liable if their employees are harassed by a third party - for example a nurse might be harassed by a patient or visitor.

In Burton v De Vere Hotels, a hotel was found liable when two of its waitresses suffered racial and sexual abuse at a dinner where the after-dinner entertainment was provided by comedian Bernard Manning.

Liability will depend on whether the employer could reasonably anticipate that harassment might occur.

The risks of sexual and racial harassment are well known.

But employers should be aware of other risks.

Last year, an employment tribunal awarded£28,000 for injury to feelings to a man bullied because of his dyslexia.

He had suffered months of abuse, including being shrink-wrapped in cling-film by fellow workers. His employers had failed to take notice of his complaints.

Bullying for any reason can be a fundamental breach of the employment contract, giving rise to a constructive dismissal claim and, if it is the cause of ill-health, a claim for personal injury.

Every employment contract has a term implied into it that employees will get reasonable support from their employer to ensure they can do their job without harassment and disruption by fellow workers.

That duty to prevent ill treatment or bullying was recognised by the House of Lords last year in the case of Waters v Metropolitan Commissioner of Police.

A female police officer complained that a male officer had sexually assaulted her in the pub after work.

Although the harassment took place when both parties were off-duty, the court held that the socialising was part and parcel of the working day.

Constant vigilance seems to be the only defence for employers where harassment or bullying is concerned.

They must, while listening sensitively to the victim's complaints and, if necessary, fairly disciplining the perpetrator, constantly be aware of the potential for liability for the perpetrator's actions. They must be alert for signs of sexual, racial or disability harassment and just plain bullying.

They must monitor for risks of harassment to workers by other workers, to patients by workers and to workers by patients or visitors.

Finally, they must make sure that all staff know the acceptable limits of behaviour and carry that through to off-duty socialising. l