SPECIAL REPORT LAW

Published: 07/11/2002, Volume II2, No. 5830 Page 36 37

New legislation hopes to clamp down on any signs of bullying in the workplace, says Peter Edwards

Bullying and harassment can have a devastating effect on individuals' performance and attendance at work, and can pose significant organisational costs for the NHS.

The government is considering legislation to tackle these problems. The Dignity At Work Bill is currently passing through Parliament and, if it receives royal assent, it is likely to have a significant impact on all employers in the UK. The bill says employees and contract workers, including agency staff and employees of private-sector partners, have a contractual right to dignity at work. If a worker suffers bullying or harassment causing alarm or distress, this will breach that right.

The bill gives examples of the type of behaviour that will be deemed to constitute such bullying or harassment. The list is not exhaustive but includes:

Behaviour on more than one occasion that is offensive, abusive, malicious, insulting or intimidating.

Unjustified criticism on more than one occasion.

Punishment imposed without reasonable justification.

Changes in the duties or responsibilities of the worker to the worker's detriment without reasonable justification.

The bill also recognises that any worker raising concerns about bullying or harassment, or giving evidence in support of such concerns, may face further unacceptable treatment and contains provisions to protect them against this.

Consequences of breach Because the bill implies a right to dignity at work into all employment contracts, a worker can bring an action in the courts for breach of contract in the same way as for any other breaches of the employment contract.

However, in most cases it is anticipated that workers will bring proceedings in an employment tribunal.

The claim will need to be raised within three months of an incident, though a tribunal may allow an action after this if it considers that in the circumstances it would be just and equitable to do so.

If the tribunal finds that there has been a breach, it may grant any or all of the following remedies:

An order declaring the rights of the person bringing the complaint.

A recommendation that the employers take action within a certain time period to ensure the employee's right to dignity at work is no longer being breached.

An order for compensation to be paid to the worker. The amount of any compensation awarded will depend on the seriousness, frequency and persistence of the employer's breach and any financial losses that flow from it.

In addition, employees may resign in response to a breach of their right to dignity at work, and bring an action for constructive dismissal. For good measure, any employer who does not comply with the remedies granted may find the tribunal increasing the amount of compensation payable.

The employer's defence The bill outlines the steps an employer can take to successfully defend an action for breach of the right to dignity at work:

The employer must have a 'dignity at work policy' in place, and be doing more than merely paying lip service to it.

The employer must nominate a 'competent person' with sufficient training, experience and other qualities to enable them to respond properly to complaints and to assist in taking any required remedial measures.

This person will be responsible for investigating complaints and, where there has been a breach of the right to dignity at work, making it clear to those involved (including witnesses) that the behaviour in question is unacceptable and will not be tolerated. This must be done as soon as is practicable, and in any event within three working days of a complaint.

The employer must then take 'all reasonable' actions to ensure there is no repeat of the breach.

Again, these steps must be taken as soon as is practicable.

Action plan for employers Many NHS employers already have policies in place in respect of bullying and harassment at work.

Implementing such a policy will reduce the risk of sex, race and disability discrimination claims, as well as putting them in a position to comply with the bill if it becomes law. When drafting or updating a policy, NHS employers should have regard to the nine requirements listed in schedule 1 of the Dignity at Work Bill:

The policy should be in writing and distributed to every employee.

The right to dignity at work should be explained.

Examples of types of behaviour which may breach this right should be given.

There should be a clear statement of the procedure for bringing complaints.

Contact details of the 'competent person' to whom complaints should be made should be included.

The policy should contain an outline of the disciplinary procedure which may be followed if there is a breach of the right to dignity at work.

Arrangements for training in the use of the policy should be stated.

There should be annual monitoring of the policy.

There should be consultation with the trade union and health and safety representative regarding the policy, its implementation and revision.

The NHS is already committed to promoting dignity at work through the Improving Working Lives standard. If the Dignity at Work Bill becomes law, it will provide legislative impetus to this programme and will mean employers who do not tackle these issues could face significant legal liabilities.

Peter Edwards, employment partner, Capsticks Solicitors

Case study: Christine Goodwin v UK

On 11 July 2002, 65-year-old Christine Goodwin won a case at the European Court of Human Rights against the UK government, which she claimed had discriminated against her because she was a transsexual.

The system of registering births will need to be changed so transsexuals can be registered under their new identities as a result.

Previous, similar cases had not succeeded. Rees v UK [1984] concerned a male to female transsexual who sought to change the recorded sex on her birth certificate. The European Court found no breach of article 8 (the right to privacy) on the basis that this would have forced the UK government to amend the law and the entire system of registering births and determining civil status.

In Sheffield and Horsham v UK [1998], two transsexuals sought to challenge a refusal to amend their birth certificates to reflect their change of sex to female. The European Court held that there had been no violation of articles 8 and 12 (the right to a family life). It said that in the absence of a shared approach to transsexualism in Europe, it was acceptable to refuse to recognise a transsexual's changed sexual identity.

However, the court criticised the UK government for not keeping the need for appropriate legal measures under review. The UK was warned about ignoring the increasing 'social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter'.

In Ms Goodwin's case, the court decided unanimously that there had been violations of articles 8 and 12.

Ms Goodwin is a male to female transsexual who claimed she had encountered problems and sexual harassment at work during and subsequent to her gender reassignment.

She also experienced problems with national insurance contributions, as legally she was still a man and therefore had to make contributions until the age of 65. As a female, she would have ceased contributions at the age of 60.

Her contributions had to be made without the knowledge of her employer, who did not know of her previous gender. This was a breach of her right to privacy and prevented her from living her life as a woman.

The UK was roundly criticised for not having taken heed of the previous warnings that it should periodically review its legal measures in respect of transsexualism and take account of the increased social acceptance of transsexualism.

However, it was noted that the UK was already discussing proposals for reform of the registration system.

This decision shows the European Convention on Human Rights to be the foundation of a living and constantly evolving source of case law.

It will have far-reaching impact on the NHS, which will no longer be able to use previous rulings when dealing with employment issues and the allocation of funding for services.

Trusts and strategic health authorities should make sure their policies are compliant with Ms Goodwin's case and ensure they do not carry out employment practices that give rise to complaints from either patients or employees.

However, it may be a treacherous road. Public authorities will need to balance the requirement to respect the privacy of individual workers with the necessity to carry out checks before employing staff who will be working with vulnerable groups.

As long as they take a sensible approach to reviewing employment practices and considering the allocation of healthcare resources, they should be able to avoid criticism - but time will tell.

Belinda Moore, solicitor, Kennedys

Age concern: 'normal' retirement age under threat

An employer's ability to retire employees who have reached a particular age without the risk of a legal claim is under threat following the decision of an employment tribunal.

The Stratford tribunal hearing Rutherford v Towncircle Limited ruled that statutory provisions protecting employers from claims for unfair dismissal or redundancy payments from employees who have reached the age of 65 breach European law. Therefore, tribunals must disregard them.

The government has announced that it will appeal the decision; so present tribunals hearing similar claims will not be bound to follow the Stratford decision. However, the view formed by the employment appeals tribunal will be binding on other tribunals.

The government is likely to argue that a fixed retirement age is objectively justified and that removing it would be too onerous for employers, who would have to justify any decision to retire an employee on grounds other than age.

If the tribunal's decision stands, it will affect the ability of any employer to operate the state retirement age of 65 and, potentially, any other 'normal' retirement age that is applied equally to men and women.

The tribunal found that more men than women would like to continue working beyond their 65th birthday, so a statutory rule that allows employers to dismiss employees after this date without penalty is indirectly discriminatory against men.

Employers will also have to look again at the practice of allowing staff who have passed normal or state retirement age to continue working.

This has been a relatively risk-free option for the many employers who have wanted to retain skilled and experienced staff on a flexible basis, since employment legislation has enabled them to dismiss employees after the age of 65 without risking claims.

Employees in this position will already be able to take advantage of the Stratford tribunal's judgement and will have nothing to lose by putting in claims and waiting to see if the government's appeal changes the position.

In the long term, fixed retirement ages may not be entirely a thing of the past. However, to pass the test of fairness, they may have to be linked to a clear need for succession planning by the employer or a clear decline in the employee's abilities.

As the biggest employer in the UK, this is bound to affect the NHS. If professional judgement is at issue, NHS employers may be faced with having to invoke formal procedures to effect a capability dismissal of an older employee.

The government will have to tackle the issue by December 2006 - the date by which it must implement European law outlawing age discrimination.

Christina Morton, professional support lawyer, Beachcroft Wansbroughs