The Supreme Court recently heard a case, which according to the Judge involved, ‘will set the benchmark for workplace bullying going forward.’ In essence, the outcome of this case was the establishment of a higher threshold which needs to be met in order to define workplace bullying.
In examining what constitutes workplace bullying, the following was determined by the Court. Behaviour must be:
(c) Capable of undermining the plaintiff’s dignity at work
Quite often, an isolated incident of the behaviour may be upsetting or an affront to dignity at work but as a once-off incident may not be considered bullying.
Inappropriate behaviour can be direct or indirect; verbal, physical or otherwise. It may be conducted by one or more persons against another or others at the place of work; and/or in the course of employment. ‘In the course of employment’ could well be considered outside of working hours and off the premises because of social media and online resources.
Inappropriate behaviour is not always unlawful. It is often behaviour that is inappropriate at a human level. Inappropriate behaviour can be unfair and flawed, but that does not make it inappropriate in the context of the definition i.e. without it being repeated or undermining dignity.
Examples of inappropriate behaviour in the workplace can be - purposely undermining an individual, targeting them for special negative treatment, the manipulation of their reputation, social exclusion or isolation, intimidation, aggressive or obscene behaviour, jokes which are obviously offensive to one person, intrusion by pestering, spying and stalking.
In this landmark case, the most important component of this definition was considered to be the question of undermining dignity at work. The Judge said that, ‘the word ‘dignity’ has a distinct moral component.’ The plaintiff was denied fair procedures and he said, ‘the denial of fair procedures is never a trivial matter, but he did not think it could be comfortably said to be undermining of human dignity.’
This Supreme Court judgment has raised the threshold required for plaintiffs to meet in order to establish that workplace bullying has actually taken place. The judgment is careful to note the distinction between an unfair process and actual bullying.
Another important component of the decision is the manner in which the court linked the three separate elements of the test. It was stipulated that each separate element must be met and a clear distinction drawn between each element. For instance, just because behaviour happens more than once does not mean it is repeated for the purposes of this test. Just because behaviour is inappropriate, it does not mean that it is automatically undermining to dignity at work.
The Judge also determined that ‘the injury must be measurable and the conduct severe.’ He referred to a previous case in the UK where it was stated that ‘in institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners, but I am not sure that the right way to deal with it is always by litigation.’
Correction and guidance is not bullying.
This case will provide guidance to both plaintiffs and defendants in deciding whether or not to bring actions of this nature.
If you are an employer or an employee in need of further advice, contact us today.