Employers may be liable for bullying or harassment, either directly or vicariously, if the acts are performed by employees in the course of employment:
- Under discrimination law (the Equality Act 2010).
- Through a breach of contract claim.
- Through an unfair constructive dismissal claim (based on the employer's breach of the implied term of mutual trust and confidence).
- By a breach of a statutory duty such as the duty to provide a safe place and system of work under the Health and Safety At Work etc Act 1974.
- Through a claim under the Working Time Regulations 1998.
- Through a claim for negligence at common law.
- Under the Protection from Harassment Act 1997 (PHA 1997).
Claims under the Protection from Harassment Act
A person must not pursue a course of conduct which "amounts to harassment" and which they know or "ought to know" amounts to harassment. A person ought to know that a course of conduct amounts to harassment if a reasonable person in possession of the same information would think it did.
Claimants need to be able to demonstrate that there was a "course of conduct". In the case of conduct towards a single person there must be conduct on at least two occasions in relation to that person and in the case of conduct towards two or more people there must be conduct on at least one occasion in relation to each of them.
Claimants need only prove that they have experienced "anxiety" or "distress" as a result of the harassment. This is a significantly lower hurdle than establishing a recognisable psychiatric condition to establish personal injury under common law.
Harassment can include both verbal comments and non verbal actions.
Claims under the Equality Act
The ingredients of harassment under discrimination law are arguably more difficult to prove than anxiety or distress under the PHA 1997
A single incident will suffice to establish harassment under the discrimination legislation.
Employers can rely on a statutory "reasonable steps" defence available under the discrimination legislation.
Employees must bring a claim under the Equliaty Act 2010 within three months. which is of course much less than the six years allowed under the PHA 1997