Campaign Against Unnecessary Suspensions & Exclusions in the NHS (CAUSE)

Legal Advice

Legal redress
Bullying-induced injuries

Bullying in the workplace often has a serious impact on an employees mental and physical wellbeing. It can undermine their ability to work for their employer and commonly their ability to return to work in other workplaces.

There is no specific legal remedy for bullying in the workplace but there are a number of potential legal claims.

As the law is complex, it is advisable to consult with a firm of solicitors who practice in both employment law and personal injuries.

This article attempts to give a quick overview of the different legal claims available.

Unfair dismissal
A claim can be made to an Employment Tribunal for compensation for unfair dismissal where there has been a dismissal (often in these circumstances for long term ill-health) or where the employee has had no choice but to resign in circumstances that amount to constructive dismissal. Where an employee is able to show that they resigned because the employers conduct was wholly inappropriate or unreasonable it is relatively easy for the Tribunal to conclude that their resignation amounted to constructive dismissal and that that dismissal was unfair.

Compensation is limited to the basic award (equivalent to statutory redundancy pay) and the compensatory award which includes around £250 for loss of statutory rights as well as loss of earnings. The compensatory award is subject to a ceiling of currently £58,400.

Loss of earnings is based on actual net loss of earnings (less benefits) to the date of the Tribunal and projected loss of earnings. Usually loss of earnings is not awarded beyond 6 months after dismissal, although in this kind of case it is more likely that a longer period would be awarded if the medical and other evidence supported it.

In an Employment Tribunal each party bears their own legal costs so the winner does not recover their legal costs from the loser. However, without the risk of having to pay the winners costs if they lose it is easier for an employee to bring a weak case. This is important as even a strong case is nowhere near 100% certain to win.

A claim to the Tribunal usually has to be made within three months so there is a need to act quickly and often before an estimate of the actual loss is possible, which is not the case with a civil claim.

Discrimination claim
If there is an element of gender, race, sexuality, disability and age discrimination then a discrimination claim can be made to the Employment Tribunal. With such a claim there does not have to be have been a dismissal and significantly there is no ceiling on the amount of compensation that can be awarded.

In addition to a claim for financial loss a claim can be made for injury to feelings and personal injury. Awards for injury to feelings usually range from £500 to £25,000 in extreme cases.

Disability claim
A person is disabled within the meaning of the Disability Discrimination Act 1995 if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities.

From 2005, mental impairment no longer has to mean a clinically well-recognised illness, although a report from a psychiatrist diagnosing a recognised psychiatric condition is still preferable.

Long-term means that the condition has lasted, or is likely to last, at least 12 months.

The condition that normal day-to-day activities are affected would be satisfied if their memory or ability to concentrate, learn or understand is affected adversely to a substantial degree.

The disability claim can be based on the employers duty to make reasonable adjustments and a dismissal for ill-health can also be challenged on this basis. The claim can be made to an Employment Tribunal, there is no ceiling on the amount of compensation and the award can include both injury to feelings and for injury (e.g. the exacerbation of a pre-existing illness).

Personal injury claim
A personal injury claim can be made in the County Court or High Court. With such a claim there does not need to have been a dismissal.

To bring such a claim the employee will need to show that their mental condition was caused by, or made worse by, the employers behaviour. This can be difficult especially if the employee has a complex medical history or where other life events make it difficult to attribute the illness to work.

Even if they are able to show that the employers treatment caused their illness or made it worse, they will also have to show that their employer should have foreseen the effect of their behaviour and should have taken steps to avoid it. The case law suggests that this is not going to be easy.

Protection from Harassment Act 1997
It is now quite clear that there is also a potential claim against the employer under this legislation, opening up the potential for a civil claim for damages.

Conclusion
Normally it is going to be easier to bring a stress-related claim in the Employment Tribunal. If the facts support it the claim will be based on discrimination as well as unfair dismissal as that will allow recovery for injury to feelings and for any injury and will mean that there will be no ceiling on the compensatory award.

If there is no basis to claim discrimination, the effect of the statutory ceiling on the compensation award for loss of earnings in unfair dismissal claims means that higher earners and those who are unlikely to work again for some period are unlikely to receive full compensation. A personal injury claim may also need to be considered. The law is complex around the impact of bringing both or not pursuing an unfair dismissal claim in favour of a personal injury claim and a solicitor will consider these aspects carefully.

The above article is for general information purposes only and is in no way intended to constitute legal advice. You should not take any action based upon on this article without first receiving legal advice from a lawyer familiar with your particular circumstances. No liability is accepted for reliance on the information contained in this article.