by Roderick Ramage, solicitor, www.law-office.co.uk
first published in New Law Journal (email@example.com) on 25 October and 1 November 1996
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 ( 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 ( 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 (  IRLR 347, EAT and  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 ( 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 ( 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 ( 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 ( 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 ( 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 (  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 ( 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, 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 ( 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  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 ( 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 (  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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