by Roderick Ramage, solicitor,
www.law-office.co.uk
first
published in New Law Journal (newlaw.journal@butterworths.co.uk) on 25 October
and 1 November 1996
DISCLAIMER
This
article is not advice to any person and may not be taken as a definitive
statement of the law in general or in any particular case. The author does not accept any
responsibility for anything that any person does or does not do as a result of
reading it.
Mobbing
is not new and nor is the behaviour which it describes, but what is perhaps new
is the use of the word in the context of work and its recognition in England as
an identifiable class of behaviour in the workplace. In the business section of the Swiss weekly journal die
Weltwoche of 25 July 1996 Alain Zucker wrote of the phenomenon in Germany
as well as Switzerland of mobbing in the workplace as a growing outlet for
frustrated employees. Rather than
translate his article into English, I offer in what follows an expansion of his
theme and interpretation of the phenomenon in the context of English employment
law.
Mobbing,
as described by Herr Zucker, shows itself in three ways, (1) by employees
against a colleague, (2) by employees against a subordinate and (3) by
employees against a superior. I
describe these as horizontal, downward and upward mobbing. In whatever direction, it consists of or includes
the harmful treatment of or the putting of harmful pressure on an employee,
often with the intention and effect of inducing him to leave. It has characteristics which commonly lead
to claims of constructive dismissal, for example, on the grounds of lack of
support of an employee by the employer, but usefully draws together widespread
experience and a number of established principles into a coherent field of
study.
The
principle characteristic of mobbing is conduct by a group of employees, which
if done by an individual would be stigmatised as "picking-on" or
bullying. The conduct can be deliberate
and consciously co-ordinated, but is just as likely to develop more or less
spontaneously without a conscious plan, but as a result of a barely conscious "copycat"
atmosphere. Therefore it is often
insidious, difficult to detect, harder to prevent once discovered and
potentially incurable. The normal
result is that an employee suffers deteriorating health, consequent loss of
performance and eventual dismissal or resignation.
The key
element in mobbing as described in this article, which distinguishes it from
the usual types of constructive dismissal, is that the conduct is by other
employees and not the employer.
"Corporate bullying", which shares many of the features
described in this article, is of conduct by the employer and can be regarded as
an established form of constructive dismissal.
The main
thrust of Herr Zucker's article is the third of the three categories identified
by him, which I call upward mobbing: His article's full title is "Mobbing
gegen Chefs". I include the
other two (horizontal and downward), partly for good order and tidiness, but
mainly review the principles briefly in a more familiar context.
I intend
to discuss only the general principles and the parties' rights and obligations
without exploring all possible instances such as, for instance, examples of
mobbing which also include conduct in breach of health and safety law or,
except as a mention in passing, claims by a victim against the perpetrators. By way of introduction, as mobbing could be
regarded to a large extent as a form of constructive dismissal, I first
summarise briefly the main elements of constructive dismissal, the employer's
duty of trust and good faith and the employer's vicarious responsibility for
acts of its employees.
Constructive
dismissal is based on the Employment Rights Act 1996 s 95(1)
(re-enacting the Employment Protection (Consolidation) Act s 55(2)), which
gives, as the third definition of dismissal:
"(c)
the employee terminates the contract under which he is employed (with or
without notice) in circumstances in which he is entitled to terminate it
without notice by reason of the employer's conduct."
In Sharp
v Western Excavators ([1978] QB 761, IRLR 27), the House of Lords settled
that the employee's entitlement to terminate his contract is determined by the
so-called contract test rather than a test of fairness akin to the fairness
required under ERA s 98(4) (EP(C)A s 57(3)), and that the breach must be one
that goes to the root of the contract.
"Reasonableness"
re-entered through the back door, so to speak, in Post Office v Roberts
([1980] IRLR 347, EAT) and has not been evicted. In this case the EAT refused to go so far as to say that the
employment contract contained an implied term that the employer would behave
reasonably towards the employee, but accepted that the employer must not
undermine the duty of trust and confidence between the employer and the
employee: it is not necessary for the employee to show that the conduct
deliberately or intentionally undermined the trust and confidence or was
prompted by bad faith.
The
employer's duty of trust and confidence is rarely included expressly in employment
contracts, but in numerous cases the court and tribunals imply it so readily
that it can (almost) be taken for granted.
In Woods v WM Car Services (Peterborough) Ltd ( [1981] IRLR 347,
EAT and [1982] IRLR 413, CA) the Employment Appeals Tribunal, after emphasising
the importance of the duty said: "We regard this implied term as one
of great importance in good industrial relations." It explained
that one consequence of the Western Excavating contract test is that
employers have "had resort to methods of 'squeezing out' an employee
stopping short of any major breach of contract. Thus an employee who is 'squeezed out' by the wholly unreasonable
conduct of the employer may claim that he has been dismissed even though he
cannot point to any specific major breach of contract by the employer."
A recent
example of an implied duty of trust and good faith being "taken for
granted" is St Budeaux Royal British Legion v Cropper (EAT,
Commercial Lawyer March 1996, p55), in which working hours were reduced from 56
to 51 under an express clause. The
employer's action was held to be a breach of its implied duty of trust and good
faith: the implied term did not override the express term but imposed a limit
on how the employer's discretion could be exercised.
This
issue is crucial in relating to mobbing as it concerns whether and if so the
extent to which the employer is responsible for the acts of his employees. The principle of vicarious liability of an
employer stated by Salmond on Torts (18th edition, p 437) is: "If
a servant does negligently that which he was authorised to do carefully, or if
he does fraudulently that which he was authorised to do honestly, or if he does
mistakenly that which he was authorised to do correctly, his master will answer
for that negligence, fraud or mistake.
On the other hand, if the unauthorised and wrongful act of the servant
is not so connected with the authorised act as to be a mode of doing it, but is
an independent act, the master is not responsible; for in such a case the
servant is not acting in the course of his employment but has gone outside of
it."
In Aldred
v Nacanco ([1987] IRLR 292, CA) the employee was injured in the washroom at
her place of work when another employee pushed a loose washbasin against her
and sued her employer for damages for personal injury. The grounds were first that the washbasin
was not as reasonably safe as a reasonable employer should have made it and
secondly that her employer was vicariously liable for the action of the
employee which led to her injury. Both
her claim and her appeal were dismissed.
The Court of Appeal approved the principal in Salmon. The employee's act which caused which caused
the injuries had nothing to do with anything she was employed to do was wholly
outside her employment.
The CA
preferred the Salmon test to that of Comyn J in Harrison v Michelin Tyre Co
Ltd ([1985] All ER 918):
"Whether
a reasonable man would say either that the employee's act was part and parcel
of his employment (in the sense of being incidental to it) even though it was
unauthorised or prohibited by the employer, in which case the employer was
liable, or that it was so divergent from his employment as to be plainly alien
to his employment, and wholly distinguishable from it, in which case the
employer was not liable."
Donaldson's
opinion was that under the Harrison v Michelin test, the employer would
have been vicariously liable if, instead of rocking the handbasin, the employee
had knifed the appellant.
There is
little guidance in the unfair dismissal cases but some guidance can be found in
the discrimination cases. The Sex
Discrimination Act 1975, s 41(3) provides: "In proceedings
brought under this Act against any person in respect of an act alleged to have
been done by an employee of his, it shall be a defence for that person to prove
that he took such steps as were reasonably practicable to prevent the employee
from doing that act, or from doing in the course of his employment acts of that
description."
In Balgobin
and Francis v London Borough of Tower Hamlets ([1987] IRLR 401, EAT), the
employer, which did not know of the harassment before a complaint was made to
it, had proper and adequate staff supervision and had made its equal
opportunities policy known, was not guilty of sex discrimination.
In Racebridge
Engineering Ltd v Darby ([1990] IRLR 3, EAT), the employee resigned, after
her complaint to the general manager of sexual harassment failed because of
denials of the assault by the two men (her chargehand and works manager) whom
she accused and who threatened her with a written warning for leaving work
early to wash her hands. An industrial
tribunal found that she had been constructively dismissed and unlawfully
discriminated against on grounds of sex.
The EAT dismissed the employer's appeal and found that the IT had
correctly concluded that the acts perpetrated by the harassers were acts
committed in the course of their employment, since they were engaged in
exercising, or in the course of exercising a disciplinary and supervisory
function: presumably, under the Salmon test, she would have had no remedy if
she had left with permission or in a work break.
In the
absence of any direct statutory (there is none) or contractual (improbable)
right, the victim's remedy is likely to be to claim constructive
dismissal. The problems facing the
victim of mobbing, who wishes seeks redress against his employer, include:
The
employer's procedures will be a crucial element in dealing with mobbing: first
the supervision and monitoring the conduct of his employees and secondly the
employee's access to redress. Balgobin
and Francis v London Borough of Tower Hamlets (see above) shows the
importance of the employer's systems as part of his defence against claims by
employees. On the other hand the
failure of an employer to afford promptly a reasonable opportunity to obtain
redress of grievances can of itself amount to constructive dismissal: WA
Gold (Pearmark) Ltd v McConnell and another ([1995] IRLR 516).
One
route available to the victim is to claim that, by allowing the mobbing to take
effect and failing to stop or at least control it or mitigate its effects, the employer
is in breach his duty not to undermine the mutual duty of trust and
confidence. That breach can entitle the
employee to resign and make a claim in the Industrial Tribunal for constructive
dismissal. In Wigan Borough Council
v Davies ( [1979] IRLR 127), Miss Davies, formerly the "third in
charge" at a nursing home, sided with the warden in a dispute between with
the care assistants. After a local
authority enquiry she returned to work there as a care assistant, she was sent
to Coventry by the other staff and they refused to co-operate with her in her
work, as the employer knew, and she left and claimed constructive
dismissal. The EAT upheld the decision
of the industrial tribunal, which had said that the employer's duty of trust
and confidence includes enabling the employee to carry out her duties without
disruption or harassment from fellow employees.
In a Wigan
v Davies claim the employer's knowledge will be crucial to the question of
his liability. The employee will not
succeed unless he can show that the employer knew or should have known of the
conduct. The employer can have actual
knowledge directly acquired from his own observation, or he can have
supervisory and other monitoring and reporting procedures reasonably capable of
keeping him informed of what is happening.
The employer cannot defend himself by saying that he did not know what
was going on, if he had failed or deliberately refused to see what should have
been clear to a reasonable employer with reasonable supervisory and other
monitoring and reporting procedures.
If, even 'though reasonable systems exist, the employer does not know of
the mobbing, the employee is unlikely to obtain redress within the company and
therefore either suffers in silence and survives or suffers but is eventually
driven to leave. Where the employee has
made no effort whatever to raise the complaint internally and where there is no
means by which the employer should reasonably be aware of the problem, it is
difficult to see how the conduct of other employees can be regarded as conduct
by the employer justifying the resignation of the employee.
The
employer may dismiss the perpetrators of mobbing if:
The
victim of mobbing may have a remedy in tort against the perpetrators, but
discussion of the issue is outside the scope (and length) of this article.
This
does not fall easily in the definition of mobbing, because the conduct is
likely to be by one superior although two or more could co-ordinate their
efforts as in Racebridge Engineering Ltd v Darby (see above). The principles relating to horizontal
mobbing apply to downward mobbing, but with greater force, because of the power
and authority which the superior has over the subordinate, particularly if the
superior is the person through whom the employers grievance procedure operates
and to whom complaints would normally be made.
There is
also a major difference. An employer is
vicariously liable for the acts of those employees which it put in a
supervisory position, if the supervisor is acting in the course of his
employment: Hilton International Hotels (UK) Ltd v Protopapa ([1990]
IRLR 316, EAT). Thus the vicarious
liability of an employer for the acts of a person put in authority over others
is more easily established than it is for the acts an employee against
equals. The supervisory position of the
perpetrators was an important, if not the decisive, factor in Racebridge
Engineering Ltd v Darby (see above).
A point
made by Herr Zucker, which may seem perverse to English employment law
practitioners, is that it is the duty of mangers to manage and control their
subordinates and therefore conduct of the type described is part of their
duties. One answer to this point is the
distinction between controlling and managing, which Harvey (Harvey on
Industrial Relations and Employment Law (Butterworths), Vol 1, Section
D[428], issue 107) calls "Lawful orders and managerial prerogative"
on the one hand and unreasonable conduct on the other.
Where an
employee has management powers over another and exercises them in a way which
leaves the other to resign and claim constructive dismissal, the latter's claim
may succeed even though no one superior to the mobbing superior was aware of
the conduct, because that person has been put in the position of authority by
the employer from which the employer has vicarious liability and that person
has exercised it in a way which undermines the trust and confidence between the
employer and the employee.
In BBC
v Beckett ([1983] IRLR 43, EAT) a senior carpenter left a part built
rostrum without a warning and it gave way when someone stepped on it causing an
injury. He was demoted and successfully
claimed unfair dismissal based on a disciplinary punishment, which was "grossly
out of proportion to the offence".
This
seems to be the hard-core of Herr Zucker's thesis and is the one least
developed in the experience of English employment lawyers. Here a group of employees can undermine a
superior, for example by systematically failing to carry out instructions or to
carry them out poorly or by obstructing his work in other ways or, in extreme
cases by covert sabotage or degradation of his computer data, withholding of
information and so on and so on.
The
example, which appears to have inspired his article, concerns a senior
university researcher, who gradually became aware that his contributions at meetings
were ignored by colleagues, that his assistants caused his research to become
misdirected, and that his professor publicised aims of research without
consulting him as project leader. That
story, unlike others ended happily, when the assistants, who had mishandled his
work, had their dissertations rejected and were dismissed and the professor,
who had feared competition, changed his field of research: but a lawyer cannot
stop where others live happily ever after.
What can
be done by the perpetrators in the course of mobbing a superior is,
objectively, largely similar to what can be done to colleagues or subordinates,
but this is probably the hardest situation to deal with.
The
victim is in a particularly difficult position and can do little to protect
himself. It is his job to manage. If he complains to his superiors it may be
seen as an admission of his failure to perform his role or that he is
unsuitable for it. Employees in a
junior management role are more likely to seek and obtain the employer's
support, but the issue becomes increasingly difficult with increasing levels of
seniority of the victim, because at each successive level both the manager and
his superiors have a higher degree of expectation of his performance and the
manager has an increasing degree of reluctance to take action which would be
seen as an admission of or failure on his part.
Although
in Whitbread plc t/a Threshers v Gullyes (1.7.94 EAT 478/92 [1994] 509 IRLB
14) there was no conduct by subordinates, which could be described as mobbing,
an useful analogy can be drawn, because it illustrates that the principle, that
the employer must not undermine the trust and confidence between the employer
and the employee, applies to managers as well as to junior employees. In this case the manager of a shop was not
given adequate staff, support and resources to perform her duties and succeeded
in her claim for unfair constructive dismissal.
In Associated
Tyre Specialists (Eastern) Ltd v PA Waterhouse ([1976] IRLR 386), the
employee was disciplined over complaints about her supervision. she sought but was not given any guidance
and resigned when further complaints were made and the girls under her
supervision walked out. The Industrial
Tribunal found that the employer's lack of support amounted to constructive
dismissal and the EAT agreed.
Where
the victim is in effect the boss one consequence can be that mobbing so reduces
the economical efficiency of the business that its existence will be
jeopardised if he fails to recognise in time what is happening, even though as
the boss he has the legal power to take the necessary disciplinary action
against the perpetrators on whom he depends to achieve its work.
First
the employer should be aware of the nature of mobbing and its effect on
employees at all levels. He must have
good systems for monitoring and investigating the conduct of employees at all
levels and for timely consultation and action without the need to wait for
employees to complain. Timing is
crucial, because the nature of the conduct is such that, if action is delayed,
relations between employees and the harm to the victim are likely, as in the Wigan
Borough Council v Davies (see above) case, to become beyond repair.
Walker v
Northumberland CC ( [1976] IRLR 386), the landmark
"stress" case, in which the employer's failure to give adequate
support to overworked social service officer resulted in his nervous breakdown
and claim for damages, illustrates that action by the employer, which is
inadequate or too late, can have serious consequences for both the employee's
health and the conduct of the employer's business, quite apart from the direct
money cost of compensation and damages.
It is
inherent in many mobbing cases that the conduct will give rise to not just
employment protection dismissal cases, victim against employer for unfair
constructive dismissal (should will) and perpetrators against employers for
unfair dismissal (should lose) but also claims by the victim for damages for
injury and other loss suffered. The
second category is separate from and in addition to statutory for unfair
dismissal and is not restricted to the cap on statutory compensation.
copyright
Roderick Ramage
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