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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