PI Practitioner, January 2020

16/01/20. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

This month's practitioner update concerns the application of exceptions to the EL/PL Protocol.

Timothy Frank Colin Scott v Ministry of Justice, Sen Cts Costs Office (Deputy Master Friston) 05/12/2019

The Claimant, a prison officer, was injured when restraining a prisoner who resisted. A letter before claim was sent which referred to the Pre-Action Protocol for Personal Injury Claims ("the PI Protocol"). The Defendant acknowledged the letter and that the PI Protocol was said to apply. The parties agreed an extension under that protocol. The Claimant subsequently issued his Claim Form, which stated that he expected to recover no more than £5,000. At this stage the Claimant did not have the benefit of expert evidence or counsel's advice. The Particulars of Claim followed the receipt of expert evidence and a conference with counsel. The Claim Form value was subsequently amended to £30,000. The Defendant later made a Part 36 offer of £15,000 which the Claimant accepted. A dispute arose as to whether the Pre-Action Protocol for Low Value Personal Injury Claims (Employers' Liability and Public Liability) Claims ("EL/PL Protocol") applied so as to restrict the Defendant's costs liability.

The Claimant argued that the Defendant's costs liability was not restricted by the EL/PL protocol, because the... 

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FREE CHAPTER from ‘A Practical Guide to the Law of Bullying and Harassment in the Workplace’ by Philip Hyland

08/01/20. This practical guide explains how the law on bullying and harassment in the workplace works. How the law defines bullying and harassment in the workplace. How the law imposes liability. What defences are available to the employer. What practical steps the employer should take to prevent issues arising. How to deal with issues when they arise.

This book pulls together the relevant legal sources, sets the sources in context, and puts the legal material in one place in an understandable way for easy access by HR Professionals and Lawyers.

CHAPTER ONE: THE LEGAL FRAMEWORK FOR BULLYING CLAIMS

In this chapter we will look at the following:

1. The definition of bullying.

2. The source of the legal rights available to an employee or worker who has been bullied in his or her workplace.

3. The ways those legal rights can be enforced.

1. Sources of definition of what amounts to Bullying

When we look for definition in law of prescribed conduct there are only a limited number of places to look. The sources are limited and well established. The sources are as follows:

1. Acts of Parliament or secondary legislation are a primary source.

2. Caselaw or Codes of Practice issued by ACAS are a secondary source.

3. The third place to look are those organisations with authority in a particular subject or area. Typically reference can be made to academia, academic papers, or research undertaken by those non-departmental public bodies exercising a statutory function such as the Equality and Human Rights Commission or the Health and Safety Executive. Such sources can be and are quoted in legal judgments.

2. Primary sources: Acts of Parliament or Statutory Instruments
or Regulations.

Law in the workplace used to be solely governed by the common law of Master and Servant. Leaving aside the gendered terminology, the term servant implies a subservient and unequal position. Politics has played a large part in moving the regulatory landscape on from the rather Upstairs, Downstairs view that if you employed or engaged someone they were your servant. Parliament has elected Members of Parliament with a background in the Trade Union movement. Labour, traditionally, has been on the side of the working person and the name of the party reflects the side it’s on in the labour or capital equation.

With Parliament increasingly reflecting the population as a whole rather than landed interests, the majority of the population go to work as opposed to own a business. Parliament has recognised the inequality of bargaining position and has regulated to try to make the playing field more level rather than tilted towards the employers, or capital.

The workplace has become increasingly regulated from the start of the twentieth century onwards. There are laws in place governing many aspects of the working relationship. There are health and safety laws that try to ensure workplaces are safe and healthy for those working in them. No sector of the economy is immune from their reach. Health and safety laws have put rules in place for every type of working environment from working in confined spaces to control of hazardous substances from prescriptive laws on how asbestos should be managed and handled through to six pack regulations that require employers take basic health and safety measures. There is an Act of Parliament governing what the employer must pay as a minimum wage to employees and workers. There are regulations controlling working hours and holiday.

Many of these laws emanate from our membership of the European Union. Directives issued by the European Union have to be transposed into member states’ domestic laws within two years.

Many such directives have been issued and member states like the UK have complied with them by passing Acts of Parliament, statutory instruments or regulations. Examples of transposed directives include regulations on employees’ rights following a transfer of an undertaking, rules governing what consultation should take place when making 20 or more employees redundant to Acts of Parliament prohibiting many forms of discrimination in the workplace. Article 119 of the founding Treaty of Rome sets out that men and women should be paid equally and have equal pay terms in employment contracts if men and women are doing similar or like work in the same or associated employment.

Despite what feels like a deluge of regulation in the workplace in the last 30 years, there is no statutory definition of bullying. The European Union has not regulated against bullying in the workplace directly. The UK parliament has made no laws specifically defining and outlawing bullying in the workplace. Harassment on the other hand has been defined both at the level of EU directive and within the Equality Act 2010 and the Protection from Harassment Act 1997.

Bullying and harassment as terms are used interchangeably by employees and workers. Harassment is likely to amount to bullying but bullying won’t necessarily amount to harassment. Harassment is a sub-set of bullying.

There are statutory definitions of harassment – one contained in the Equality Act 2010 and the other contained in the Protection from Harassment Act 1997. There is a statutory definition of victimisation. Bullying has yet to be defined by statute. That is a surprising omission.

There are some acts that are unlawful in the workplace that are so broadly defined that bullying will fit within the definition. The Employment Rights Act 1996 prevents employees being dismissed or subjected to a detriment if the reason for being subjected to a detriment or dismissed is because the employee:

1. Has made a protected disclosure under the Whistleblowing regime.

2. Has made a disclosure about health and safety concerns.

3. Has refused to work on a Sunday.

4. Has exercised a right under Working Time Regulations.

5. Is a Pension Scheme Trustee.

6. Has made a disclosure about pension auto-enrolment.

7. Is an Employee Representative.

8. Has made a Flexible Working request.

9. Has made a request as a young employee for study or training.

10. Has or is about to exercise a right to family leave.

11. Is a member of a Trade Union.

12. Has applied for Trade Union recognition.

13. Has queried whether being paid national minimum wage.

14. Is a fixed term employee.

15. Has acted as a companion at a disciplinary or grievance hearing.

16. Has or is about to go on jury service.

17. Is on a zero hours contract.

Caselaw has interpreted detriment to mean disadvantage in Ministry of Defence v Jeremiah [1979] IRLR 436. Clearly being bullied in the workplace is a disadvantage or detriment.

However, in order to make a claim under the detriment provisions there has to be a causal link between the detriment suffered, the bullying, and the protected act. That is sometimes difficult as bullies don’t need a reason to bully. They just bully as part of their management or supervisory style or as part of their character as individuals.

2.1 Secondary sources: case law, or Codes of Practice that can be
taken into account by judicial decision makers

ACAS does not have a Code of Practice on Bullying. ACAS has published a guide for employers and employees on bullying. An Employment Tribunal can take account of a Code of Practice in determining its decision. An Employment Tribunal will also look at ACAS Guides if their attention is drawn to the material.

ACAS definition within “Bullying and Harassment at Work – A Guide for Employees” is as follows:

“Offensive, intimidating, malicious, or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”

The examples of bullying given in the guide include:

1. Spreading malicious rumours.

2. Copying in others on critical memos or emails.

3. Insulting someone by word or behaviour.

4. Ridiculing or demeaning someone.

5. Exclusion or victimisation.

6. Unfair treatment.

7. Overbearing supervision or other misuse of power.

8. Making threats about job security without foundation.

9. Deliberately undermining a competent worker by overloading and constant criticism.

10. Preventing individuals progressing by deliberately blocking opportunities for promotion or training.

The ACAS definition is a workable definition. The examples of bullying behaviour are useful, however it may have been better if the word “deliberately” had not been used at example 2.1.9. A manager could leave a direct report feeling bullied by “overloading and constant criticism” even if the manager’s actions were unintentional rather than deliberate. That’s bullying behaviour, albeit unintentional. Intent in the law on harassment goes to the gravity of the unlawful act not whether the unlawful act has happened.

So the secondary sources give some definition to what behaviour amounts to bullying but suggests that bullying needs to be intentional to fit within the definition. Some bullying behaviour may not be intentional but may leave the recipient feeling bullied.

2.2. Case law on Bullying

The second source of definition for bullying is caselaw. The legal system in the UK is described as a common law system. The common law develops as circumstances and societal mores change. It is no surprise therefore that in a common law system much of the guidance on what behaviour should be found as bullying comes from case law.

There have been reported cases on bullying. The cases have not given a definition of bullying but have given some examples of what sorts of behaviour amounts to bullying conduct.

The best-known case is Horkulak v Cantor Fitzgerald [2004] IRLR 942. In that case the employer’s Managing Director, a Mr Amaitis, was found to have subjected the Claimant to bullying behaviour. The findings were as follows:

“In my judgment the contract broke down and the position of the claimant became intolerable because Mr Amaitis took every opportunity to vent his disapproval of the claimant, to the claimant and sometimes in the presence of others … Far from having any discussions and giving advice he uttered intemperate, summary views in foul and abusive language. His solution seems to have been to frighten the claimant into performing according to the standards he required and to make it plain that any contrary view which questioned his authority will not be tolerated.”

Case law provides thin gruel for those looking for a definition of bullying. Examples of behaviour that amounts to bullying are given but not a wider generic definition.

3. Other sources such as academic papers, and the Health and
Safety Executive.

The Health and Safety Executive have a paper called “Bullying a review of the literature“. In the paper, as its title suggests, the researchers have reviewed the academic literature.

The definition of bullying that the HSE finds has most academic consensus is as follows:

“Bullying at work means harassing, offending, socially excluding someone or negatively affecting someone’s work tasks. In order for the label bullying (or mobbing) to be applied to a particular activity, interaction or process, it has to occur repeatedly and regularly (e.g., weekly) and over a period of time (e.g. about six months). Bullying is an escalating process in the course of which the person confronted ends up in an inferior position and becomes the target of systematic negative social acts. A conflict cannot be called bullying if the incident is an isolated event or if two parties of approximately equal ‘strength’ are in conflict”

However there is not agreement amongst academics on that definition and the following issues are subject to debate:

1. Does the bullying have to be intentional?

2. Does there have to be repetition or is once enough?

3. Can bullying become institutional rather than individual?

4. Does there have to be an inequality of power or position?

A review of the all the sources show that there is no consensus amongst the academics on a definition of bullying, no statutory definition by the law makers and very little definition given by the Judges in cases that come before them. The Courts have left it to the good sense of the Judge to find bullying where the facts and context permit without being too prescriptive about a definition.

4. What legal rights does an employee have not to be bullied
in the workplace?

The ACAS guide makes clear that unlike harassment which is actionable as a freestanding legal claim under discrete sections of legislation, an employee cannot make a freestanding complaint of bullying to either an Employment Tribunal or the High Court. Bullying is actionable as a legal claim but the legal claim usually comes under another heading. The route into a legal claim of bullying is signposted as a different sort of claim.

So in order to bring a legal claim where bullying is the main allegation how is the claim framed legally? What legal rights are being enforced?

Not to be bullied in the workplace is a negative right. The positive right is to be treated with respect.

Employee’s legal rights can usually be found in three places:

1. The contract of employment (including implied terms).

2. The Employer’s legal responsibilities owed to employees including the duty of care.

3. The statutory rights Parliament has given to employees.

For the sake of ease we will look at these sources of rights and duties separately. In practice, however, the distinctions overlap.

An employer’s legal responsibility to provide a safe place of work can become an implied contractual right for an employee. Similarly an employee’s statutory rights can become, in certain circumstances, implied into the contract.

The distinction is perhaps more useful when we look at the methods and mechanisms available to an employee for enforcing their contractual or statutory rights or alleging an employer has breached a legal responsibility which it owes the employee.

5. Bullying at work – the contractual position

We will look at contractual rights first. When looking at rights under the contract, we need to differentiate between the right itself and the method of enforcement. More often than not the method of enforcing a contractual right is via a statutory right. Whilst we have separated out contractual rights from statutory rights the method of enforcing those rights shows that there is plenty of overlap.

An employee’s contract is made up of terms and conditions of employment. There is a legal obligation on employers to give an employee a written statement of terms and conditions within two months of starting employment (set to become on or before the first day of Employment from April 2020).

The contract of employment has the following sorts of terms:

1. Express Terms – these terms that are either written down or expressly agreed. It is unlikely that the contract of employment or the statement of terms and conditions will say in black and white, in written down form, that the employee has the contractual right not to be bullied.

2. Incorporated terms – those terms are written down in another document outside the contract of employment or statement of terms and condition but are incorporated into the contract by reference. It is possible that an employee handbook or policy and procedure may give the employee the contractual right to a workplace that is dignified and free from bullying or harassment. That handbook or policy and procedure can become contractual if it is expressed as contractual or has become contractual through custom and practice.

3. An employer may have a handbook or policies within a handbook that set out rules and requirements about behaviour at work, dignity at work or bullying and harassment in the workplace. Whether a policy or all or part of a handbook has become contractual is fact sensitive.

In the case of Keeley v Fosroc International Limited [2006] IRLR 961 a document outside the employment contract, a handbook, became incorporated into the contract and became contractual by incorporation but also by implication. Factors that led to the handbook becoming incorporated were:

“The handbook was explicitly referred to in the employee’s terms and conditions of employment. The language of the handbook in particular the part on enhanced redundancy payments was the language of contractual entitlement. The section used the word entitled.”

There have been other cases though which have not incorporated policies or other documents governing the workplace into the contract.

In Dryden v Greater Glasgow Health Board [1992] IRLR 469 works rules were found to have no contractual effect.

Similarly in Grant v South West Trains Limited [1998] IRLR 188 the Tribunal found that an Equal Opportunities Policy had no contractual effect.

It is possible that an employer has a handbook that gives an employee the contractual right not to be bullied, but it won’t be commonplace. Most handbooks, policies and procedures are aspirational rather than binding obligations.

Workers in a workplace may have a contract for services or consultancy agreement. Those documents may reference abiding by the Handbook or specific policies and procedures, in which case workers may have similar incorporated terms not to work in a workplace that allows bullying.

4. Implied terms – these terms aren’t written down but are implied into the contract to give the contract business efficacy or the terms are implied by custom and practice. Within every employee’s contract will be implied terms. The most common implied term is the term of trust and confidence.

The term of Trust and Confidence is set out in the case of Malik v BCCI [1997] IRLR 462. The term of trust and confidence implied into every contract of employment means that employers shall not:

“without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

Bullying behaviour will usually amount to a breach of trust and confidence as will allowing bullying behaviour in the workplace.

There have been plenty of cases involving allegations of a breach of the implied term of trust and confidence or the implied right to work in a healthy and safe workplace.

Principles extracted from these cases which may have some relevance to bullying cases are as follows:

British Broadcasting Corporation v Beckett [1983] IRLR 43

The imposition of a disciplinary penalty that was grossly out of proportion to the disciplinary offence can amount to a breach of the implied term. Further the intention of the manager applying the penalty is not relevant. The manager may believe in good faith that he or she has the power under the disciplinary procedure to impose the penalty. However that intention does not:

“derogate from the general proposition that a party to the contract may so act that his conduct if viewed objectively amounts to a fundamental breach of his contractual obligations.“

So a court or an Employment Tribunal will look objectively at whether an allegation of bullying breaches the implied term of trust and confidence.

The intention of the perpetrator will not determine whether the conduct repudiates the contract. This therefore removes the requirement for the perpetrator of the bullying to have intended his behaviour to have that effect. The question becomes has the behaviour, when viewed objectively, left the employee feeling bullied. As we shall see later that test is similar to the test of harassment on proscribed grounds.

Waltons & Morse v Dorrington [1997] IRLR 488

This case involved a secretary having to work in an office where her colleagues smoked. The secretary eventually resigned and claimed constructive dismissal. The EAT held that it was an implied term of the contract that:

“the employer will provide and monitor for employees, as far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties.”

The starting point for the implication of such a term is the duty of an employer under section 2 (2) of the Health and Safety at Work Act:

“to provide and maintain a working environment for employees that is reasonably safe and without risk to health and is adequate as regards facilities and arrangements for their welfare at work.”

An Employment Tribunal can look at whether actions and behaviours of the employer pose a risk to the health and safety and welfare of the employees. They can look at the duty of care owed to the employee to see whether that duty of care has been observed or not.

Graham Oxley Tool Steels Limited v Firth [1980] IRLR 135

In this case an employer was held to be in breach of the implied term that the employee should be furnished with a working environment which is suitable to enable him or her to perform his or her obligations under the contract. In that case the working environment was so cold that the employee terminated her contract of employment

“owing to freezing working conditions which I have to work in.”

Hilton Hotels (UK) Limited v Protopapa [1990] IRLR 316

In this case a manager’s conduct in reprimanding an employee in front of other employees for making a dental appointment without first asking permission was:

“officious and insensitive” and left the employee “humiliated, intimidated, and degraded to such an extent that there was a breach of trust and confidence which went to the root of the contract.”

In that case the incident was a one off. However both the Employment Tribunal and Employment Appeal Tribunal saw that one incident was enough. Furthermore, whilst bullying was not specifically alleged the behaviour of a manager publicly criticising a report does fall within the ACAS example of bullying behaviour in the Guidance.

Palamanor Limited trading as Chaplins Night Club v Cedron [1978] IRLR 303

In this case an employee was questioned by the manager of the club why he was late. The employee denied he was late. The manager then insulted him by saying:

“You are a big bastard, a big cunt, you are pig headed, you think you are always right.” When the employee said the manager had no right to talk to him like that, the manager replied that “I can talk to you any way I like, you big cunt…if you don’t like it you can go…If you leave me now, don’t bother to collect your money, papers or anything else. I’ll make sure you don’t get a job anywhere in London.”

Both the employment tribunal and employment appeal tribunal concluded that one incident was enough, the intention of the perpetrator was not material and common sense should be adopted in determining whether the incident was sufficiently serious to repudiate the contract as a breach of the implied term of trust and confidence.

Morrow v Safeway Stores PLC [2002] IRLR 9

In Morrow the employee was reprimanded in front of colleagues and a customer by her manager.

The employee resigned in a state of distress. The Employment Appeal Tribunal held that the

“Employment Tribunal had led itself into error by seeking to separate out the actual words spoken, which it thought were not in themselves unreasonable, from the circumstances in which the reprimand took place.”

Context is therefore important in determining whether conduct or behaviour is sufficiently serious to repudiate the contract.

Wigan Borough Council v Davies [1979] IRLR 127

The employer, Wigan Borough Council, promised an employee orally following a complaint that they would offer all reasonable support to enable her to work in the workplace free from harassment and without disruption from other members of staff. Her colleagues subsequently sent the employee to Coventry and the employee resigned claiming breach of contract.

The Employment Tribunal and the Employment Appeal Tribunal found that the agreement reached orally with her employer that they would offer all reasonable support was an express term. Furthermore, there was an implied term to that effect anyway. A breach of that term entitled the employee to walk out and claim constructive dismissal.

Walker v Northumberland County Council [1995] IRLR 35

In this case a manager of a social work team had a nervous breakdown. Mr Walker was responsible for a high-volume caseload, some of which involved child abuse cases. On his return to work the Council failed to follow up on agreed actions. Mr Walker then went off sick again, never to return.

The Court held that it was not reasonably foreseeable for the employer to foresee that Mr Walker was at risk of a nervous breakdown prior to his first absence. It was however reasonably foreseeable on his return and the employer had failed in its duty of care towards its employee.

In particular the Court held that:

“There has been little judicial authority on the extent to which an employer owes to his employees a duty not to cause them psychiatric damage by the volume or character of the work which the employees are required to perform. It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable.”

This was then qualified by the following:

“That said, the duty of an employer public body, whether in contract or tort, to provide a safe system of work is, as I have said, a duty only to do what is reasonable…”

WA Goold (Pearmak) Limited v McConnell [1995[ IRLR 516

There is an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance.

Summary

An employee has the following implied contractual rights:

1. The right for their employer not to act in a way calculated or likely to destroy trust and confidence. Bullying words or behaviour can be a breach of trust and confidence depending on the circumstances. The intent of the perpetrator is not relevant. The test is objective.

2. The right to have a working environment provided and monitored for employees, as far as is reasonably practicable, which is reasonably suitable for the performance by them of their contractual duties.

3. The right to have the employer offer all reasonable support to enable the employee to work in the workplace free from harassment and without disruption from other members of staff.

4. The right to have a safe place of work.

5. The right to appropriate support.

An employee may have the following express contractual rights:

1. A handbook or policy and procedure that is contractual. Within that handbook or policy and procedure an express contractual right that an employee or worker is entitled to a workplace that is free from harassment or bullying. Most such documents are stated to be non-contractual so it will be relatively rare for an employee or worker to have an express contractual right not to be bullied.

6. Bullying at Work – the statutory position

The key statutory right for most people in the workplace is the statutory right not to be unfairly dismissed.

In order to qualify for the right, you have to:

1. Be an employee.

2. Have two years’ service.

3. Be dismissed.

There are some exceptions to the two year service rule, namely if an employee is dismissed for raising a statutory right-for example the employee has made a public interest disclosure, made a request for flexible working, or asserted a statutory right.

It is the final part of the definition that will lead to many claims being made for bullying.

Dismissal has three meanings under the Employment Rights Act 1996:

1. Dismissal with or without notice by the employer.

2. Expiry of a fixed term contract without it being renewed.

3. The employee resigns in circumstances where the employee is entitled to treat the contract as terminated.

It is this latter type of dismissal which will lead to Employment Tribunal claims for unfair dismissal on grounds of bullying. Very few employees will be dismissed by their employer for being bullied. Likewise very few employees will not have a contract renewed because they have been bullied. It is the third type of dismissal that will be the refuge for many employees who have been bullied. The third type of dismissal is known by the shorthand of constructive dismissal. In order to claim constructive dismissal, following the case of Western Excavators v Sharp, the employee has to jump over four hurdles. If they knock any of the hurdles over then their claim for dismissal will fail. The hurdles are:

1. That a term of their contract has been breached.

2. That the breach is a repudiatory one, that is sufficiently serious to entitle the employee to walk out.

3. That the employee has resigned because of the breach.

4. That the employee has not delayed their resignation for too long.

If an employee is being bullied in the workplace either by their manager or supervisor or by their colleagues, it is open for the employee to walk out by resigning and claiming constructive dismissal. The resignation can be with or without notice.

A constructive dismissal is the mirror opposite of a gross misconduct dismissal. In a gross misconduct dismissal the employer is dismissing the employee without notice for committing an act of gross misconduct. An act of gross misconduct is a repudiatory breach of contract by the employee. Examples include theft, fighting, and fiddled expenses.

In a constructive dismissal claim the employee is alleging that the employer has committed a repudiatory breach of contract entitling the employee to accept the breach by resignation. In summary the employee is claiming that the employer has committed an act of gross misconduct.

Many employers have a disciplinary procedure. In most disciplinary procedures bullying is listed as an act of gross misconduct. Indeed the ACAS Code of Practice in its appendix has a model disciplinary procedure which cites as an example of gross misconduct “bullying or harassment.”

Therefore if an employee is being bullied he or she can treat that bullying as a repudiation of the contract and resign. If repudiation is proved then the claim for unfair dismissal will succeed.

As we have seen in the above cases unreasonable and overbearing conduct by an employer, through their management team, can amount to a breach of an implied term of trust and confidence. A breach of the implied term of trust and confidence is a repudiatory breach – Nary v Archbishop of Westminster.

One point of contention is whether an employee has to lodge a grievance before resigning? The short answer is no but a failure to lodge a grievance can undermine the credibility of the claim as many employers adopt the position that if an employee has not formally complained about an issue the issue hasn’t happened. Similarly the employer can argue that had a grievance been lodged the issue could have been nipped in the bud.

An Employment Tribunal takes a more nuanced approach, recognising that employees have practical difficulties in raising a grievance, particularly if management are implicated in the bullying.

So if an employer allows an employee to be bullied in the workplace that can give rise to a constructive unfair dismissal claim. Constructive dismissal claims require the employee to take action. That action is resignation which cites that the bullying is the reason for the resignation.

So an act of bullying or a failure to prevent bullying can give rise to a constructive dismissal claim. However constructive dismissal claims have a cap on the financial award of a year’s pay or £86,444.00 whichever is the lower. The £86,444.00 cap is the cap in 2019-2020 and is uprated in April each year.

The cap may therefore inadequately compensate for the loss suffered, particularly if the loss is a loss of career or damage to mental or physical health that curtails earning ability.

Where health has been impacted an employee may want to consider a claim for negligence against the employer. Whilst negligence claims are common law claims, relying on the concept of a duty of care owed by the employer to the employee, health and safety law has codified much of the employer’s duty of care.

An employer has to have employers’ liability insurance. An employer has to abide by the laws relating to health and safety in the workplace.

What are those laws?

The common law of negligence. In order to prove negligence an employee or worker has to show the following:

1. The employer owes them a duty of care.

2. The employer has failed to take a step which can be reasonably expected in the circumstances. The employer has breached the duty of care.

3. Such a breach was negligent.

4. Damage suffered as a result of that failure.

In cases of bullying and harassment the personal injury that arises from the negligence is usually psychiatric injury.

The keynote case on stress at work which sets out the parameters of the employer’s duty of care is Sutherland v Hatton [2002] IRLR 263. In that case the Court of Appeal in the lead judgement given by Lady Hale noted that:

First, and perhaps contrary to popular belief, harmful levels of stress are most likely to occur in situations where people feel powerless or trapped. These are more likely to affect people on the shop floor or at the more junior levels than those who are in a position to shape what they do. Second, stress – in the sense of a perceived mismatch between the pressures of the job and the individual’s ability to meet them – is a psychological phenomenon, but it can lead to either physical or mental ill health or both. When considering the issues raised by these four cases, in which the claimants all suffered psychiatric illnesses, it may therefore be important to bear in mind that the same issues might arise had they instead suffered some stress-related physical disorder, such as ulcers, heart disease or hypertension.

Lady Hale also took us back to first principles:

Liability in negligence depends upon three interrelated requirements: the existence of a duty to take care; a failure to take the care which can reasonably be expected in the circumstances; and damage suffered as a result of that failure. 

She said the following about foreseeability:

Whichever is the correct analysis, the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable in a person of ‘ordinary fortitude’. The employer’s duty is owed to each individual employee, not to some as yet unidentified outsider

She noted that a particularly important feature of any claim will be the signs emanating from the employee. And whilst every case will be different it should be reasonably obvious when an employer has to take action:

In view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it.

Once it is established that harm is reasonably foreseeable the employer must then act with a duty of care. Lady hale stated:

the employer can only reasonably be expected to take steps which are likely to do some good. 

A claim for damages for bullying will have the following framework:

1. An employer owes a duty of care to employees and workers to have a safe workplace.

2. Bullying and harm from bullying is reasonably foreseeable.

3. An employer should take steps to prevent bullying and its harmful effects.

4. An employer may and will be liable for losses caused by bullying, in particular damage to health.

Cases alleging negligence involving Bullying:

There have been a number of high-profile cases involving allegations of bullying where the employee has suffered ill health and the employer is sued for damages for negligence for the loss of health and the loss of income arising.

Perhaps the best-known case is Green v. DB Group Services (UK) Ltd [2006] EWHC 1898 (QB) where a Ms Green went to work in the Company Secretarial department of Deutsche Bank. During the selection process DB became aware of the fact that Ms Green had had a traumatic childhood involving abuse from a family member and that she had suffered from stress and depression as a result.

Whilst at DB Ms Green suffered bullying at the hands of 4 female colleagues who had a history of bullying others in the department. The bullying consisted of freezing Ms Green out, laughing at her, hiding her mail, having loud conversations near her desk whilst she wa son the phone. HR did not intervene despite a complaint to them.

Subsequently the Claimant was bullied by a male manager in the department and she eventually ended up breaking down and needing hospital treatment.

She subsequently sued DB for negligence and under the Protection from Harassment Act 1997.

The High Court framed the issues to be determined as follows regarding the negligence case:

Has the claimant established that the conduct complained of took place and, if so, did it amount to bullying or harassment in the ordinary connotation of those terms? In addressing this question, it is the cumulative effect of the conduct which has to be considered rather than the individual incidents relied on. (ii) Did those involved in the victimisation or bullying know, or ought they reasonably to have known, that their conduct might cause the claimant harm? (iii) By the exercise of reasonable care, could they have taken steps which would have avoided that harm? (iv) Were their actions so connected with their employment as to render the defendants vicariously liable for them?

The Court found in favour of Ms Green and awarded her substantial 6 figure damages.

Because having a safe workplace is a legal obligation an employee who complains of bullying by way of a grievance may also be making a public interest disclosure and have protection because of that.

The public interest disclosure regime, or whistleblowing to give the more usual moniker, allows an employee or worker to make a complaint to the employer by supplying information to the employer that they are failing in their legal obligation of having a safe workplace by allowing bullying in it.

In order to qualify as a public interest disclosure the employee will have to show that he or she believes it is in the public interest to raise the matter. That may not be too difficult as either the employee or worker can show that there is a pattern or culture of bullying that affects a number of people in which case that ought to qualify as a public interest disclosure following the Chesterton case.

Alternatively the employee’s grievance may qualify as a public interest disclosure if he or she reasonably believes that the effects of bullying, increased ill health and absence, does have a public interest angle in terms of its impact on the wider economy through productivity losses and increased use of the National Health Service.

In summary therefore the legal position on bullying has not been compartmentalised as a separate legal claim.

Claims of bullying are usually brought in one of two ways:

1. By way of a claim in Employment Tribunal.

   1. This will normally be a claim for unfair dismissal claim in the employment tribunal. The right not to be unfairly dismissed is a statutory right.

      1. 1. An early conciliation certificate will need to be obtained from ACAS within 3 months of the effective date of termination and a claim lodged with the Employment Tribunal within 1 month of the date of the early conciliation certificate.

         2. In most cases the dismissal will be constructive, the employee will have resigned in response to an act of bullying that repudiates the contract.

         3. The repudiation will usually be of the implied term of trust and confidence unless there is an express right in the contract not to be bullied.

         4. Sometimes a dismissal by an employer may be an act of bullying.

         5. Unfair dismissal compensation is capped at a year’s pay or £86,444.00 whatever is the lower, together with a basic award which is calculated in exactly the same way as a statutory redundancy payment.

   2. If an employee brings a grievance that alleges bullying that grievance may be treated as a public interest disclosure.

   3. If the employee is subsequently dismissed or suffers a detriment for making the disclosure the employee can bring a claim in the Employment Tribunal.

   4. The time limits noted above will apply.

   5. However public interest claims have two notable features, firstly since the Osipov case a claim can be brought against the individual employee or worker who subjects the employee to a detriment, including dismissal, because they have brought the grievance.

   6. Secondly awards of compensation for public interest cases are uncapped.

2. Alternatively a claim can be brought in the civil courts – County Court or High Court. This claim will be one of damages arising from either a breach of a duty of care or a breach of a contractual term, normally the former. Damages claims are uncapped. The employee will have to prove the following:

   1. That the employer owed them a duty of care not to be bullied in the workplace.

   2. That duty has been breached.

   3. It was reasonably foreseeable that a breach would result in loss.

   4. The loss was caused by the breach.

Another way of looking at it as an employer is that allowing a workplace to have a bullying culture is a health and safety issue. Most employers take health and safety very seriously. For example, as part of induction many employees will be inducted into health and safety measures the employer has in place in particular the need to wear personal protection equipment like hard hats in certain areas. A failure to adhere to health and safety processes is often treated as gross misconduct by employers in their disciplinary procedures. Many employers now have a mental health first aider.

Bullying which can cause stress and affect mental health should be treated no differently as a health risk and employers should have risk assessments in place and should take risk prevention and mitigations measures.

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FREE CHAPTER and Foreword from ‘A Practical Guide to the Small Claims Track’ by Dominic Bright

06/01/20. Foreword – Over recent years, a succession of Lord Chancellors and Ministers of Justice have been keen to emphasise their commitment to protecting judges and upholding the rule of law. Such commitments are not without meaning and while the rule of law is a phrase often said, it is rarely examined. It is not an arid legal doctrine but is the foundation stone of much that creates a fair and just society.

It may be thought that the rule of law is of no relevance to a foreword about a book giving practical guidance to claims within the small claims track in the County Court. On the contrary, the rule of law is front and centre. It is because people with a dispute, however low in value and lacking complexity, can bring a claim before an impartial judge, that we can function as a civilised society where business can be done and wrongs remedied. The small claims procedure is a very real example of the rule of law in operation.

The District Bench across England and Wales is under pressure as it has never been before, with both the volume and variety of work that judges are obliged to hear. Added to that, judges generally, and the District Bench in particular, has to be able to reach both legal and factual decisions often without the benefit of the parties having legal representation. In order to fulfil their role properly and in order to continue with their duties to uphold the rule of law, without fear or favour, both full-time and deputy District Judges need to be able to manage heavy lists of both civil and family cases. A sizeable part of the daily diet of the District Bench will be civil claims which are allocated to the small claims track.

As Dominic Bright sets out, small claims account for approximately 60% of all allocations of civil work in the County Court and three-quarters of all civil claims disposed of by way of final hearing. The financial value of a small claim is now £10,000 or less and the track is designed to provide a proportionate procedure by which the most straightforward of these relatively low value claims can be decided without substantial pre-hearing preparation and without the formalities of a traditional trial. Of course, most people with a claim worth £10,000 or less are unlikely to consider the sums involved to be “small” and the title given to this track must not be seen to belittle the importance of the dispute to the parties involved. What is important is that the track provides a proportionate means of resolving a dispute between parties which can be of considerable practical importance and, despite the categorisation of small, considerable financial worth to the individuals involved.

In this comprehensive guide to the small claims track, Dominic Bright has set out all that a practitioner could possibly need to know about how to deal with a small claim, from allocation to judgment and through to any potential appeal. He covers the court’s duty to manage cases actively and the overriding objective and, in doing so, points out the duty of the court to take into account the fact that a litigant is without representation when exercising powers of case management albeit that all rules, practice directions and orders apply equally to represented and unrepresented litigants. It is, of course, incumbent upon a practitioner, as well as the court, to act in furtherance of the overriding objective. An unrepresented litigant is not only entitled to a fair hearing, he is entitled to understand that he is obtaining that fair hearing.

Further to the specifics of how the court will deal with a small claim, including the pleadings, the allocation and the hearing itself, Dominic Bright has included guidance on a wide range of matters, such as ethics and ways to behave when in court, which will be of assistance to any junior practitioner appearing in a civil case at an early stage of their career. The inclusion of the civil procedure rules and practice directions relating to the small claims track, and also to pre-action conduct and protocols and to the overriding objective and the court’s duty to manage cases, means that this guide provides a useful toolkit of relevant rules and practice directions.

This Practical Guide to the Small Claims Track will be of benefit to practitioners, particularly those new to practice. It will therefore be of benefit to the District Judges and their deputies who hear small claims. Undoubtedly, the better informed and prepared the representatives are, the better it is for the judges who hear such claims to enable them to concentrate on reaching the correct legal and factual conclusions in furtherance of upholding the rule of law.

HHJ Karen Walden-Smith
Senior Circuit Judge
Designated Civil Judge for the County Court in East Anglia November 2019

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1. Overview

This chapter provides an overview of the special procedure for dealing with claims that have been allocated to the small claims track (see appendices C and D). Specific reference is made only to those that are of fundamental importance. The remaining chapters go further, providing guidance as to when to rely upon specific rules, and when to deploy authority interpreting them.

a. Small claim

The rules of civil litigation in England and Wales are prescribed in the Civil Procedure Rules (“CPR”). Part 27 of the CPR is entitled: ‘The small claims track’. A ‘small claim’ is a claim that falls under this Part which (CPR 27.1(1)): 1) sets out the procedure for dealing with small claims; and 2) limits the amount of costs that can be recovered.

The special procedure for dealing with claims that have been allocated to the small claims track ‘is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than £10,000 can be decided, without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs’ (Practice Direction (“PD”) 26 at [8.1(1)(a)]).

There are at least three reasons why it is, perhaps, regrettable that claims that have been allocated to the small claims track are referred to as “small claims”.

First, they make up about three quarters of all civil claims disposed of by way of final hearing. Secondly, many would not accept that £10,000 is a “small” sum. Thirdly, the claimant bringing the claim, and the defendant defending against it, are both likely to disagree that the importance of their dispute is “small”.

b. Context

In April to June 2019, 25,000 cases were allocated to the small claims track. This is just shy of 60 percent of all allocations (to any track). Of the claims that went to trial, about three quarters were allocated to the small claims track – a two percent increase when compared to the same quarter in the previous year. The average time that a claim allocated to the small claims track takes to go to a final hearing is about 37 weeks (Ministry of Justice, Civil Justice Statistics Quarterly, England and Wales, April to June 2019 (provisional), 5 September 2019).

c. Allocation

The small claims track is the ‘normal track’ for three types of claim (CPRs 26.6 and 27.1(2)).

First, any claim which has a value of not more than £10,000. In practice, this type of claim forms the overwhelming majority of claims that are allocated to the small claims track.

Secondly, a ‘claim for personal injuries’ where: 1) the value of the claim is not more than £10,000; and 2) the value of any claim for ‘damages for personal injuries’ is not more than £1,000. A ‘claim for personal injuries’ is one in which ‘there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death’. ‘Damages in respect of personal injuries’ means ‘damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed’.

Thirdly, any claim which includes a claim by a tenant of residential premises against a landlord where: 1) the tenant is seeking an order requiring the landlord to carry out repairs, or other work to the premises; and 2) the cost of the repairs, or other work, to the premises is estimated to be not more than £1,000. If a tenant of residential premises is claiming a remedy in respect of harassment, or unlawful eviction, it will not be allocated to the small claims track.

d. Civil Procedure Rules

CPRs and PDs apply to small claims, except to the extent that the CPRs and PDs provide otherwise. CPRs relating to the following do not apply (CPR 27.2):

1. interim remedies (except as it relates to interim injunctions);

2. disclosure and inspection;

3. evidence (except the power of the court to control evidence);

4. miscellaneous rules about evidence;

5. experts and assessors (except the duty to restrict expert evidence; experts’ overriding duty to the court; the court’s power to direct that evidence is to be given by a single joint expert; and instructions to a single joint expert);

6. further information (although the court may, on the court’s own motion, order a party to provide further information if the court considers that it is appropriate);

7. Part 36 offers to settle; and

8. hearings (except the general rule that hearings are public; and regarding communications with the court).

e. Final remedy

The court may grant any final remedy in relation to a small claim which it could grant if the proceedings were allocated to the fast track, or to the multi-track (CPR 27.3).

f. Preparation

After allocation, the court will do one of the following (CPR 27.4).

First, give standard directions, and fix a date for the final hearing. Secondly, give special directions, and fix a date for the final hearing, or direct that the court consider what further directions are to be given, no later than 28 days after the date that special directions were given.

Thirdly, fix a date for a preliminary hearing. Fourthly, give notice that the court proposes to deal with the claim without a hearing, inviting the parties to notify the court by a specified date if they agree.

‘Standard directions’ means: 1) ‘a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which she intends to rely at the hearing’; and 2) any other standard directions prescribed in PD 27.

‘Special directions’ means ‘directions given in addition to or instead of the standard directions.’

The general rule is that the court will give the parties at least 21 days’ notice of the date fixed for the final hearing. The exception is where the parties agree to accept less notice. In any event, the court must inform the parties of the amount of time allowed for the final hearing.

g. Experts

No expert evidence may be given at a hearing without the court’s permission (CPR 27.5).

h. Preliminary hearing

A preliminary hearing may only be held in three circumstances (CPR 27.6).

First, special directions are needed to ensure a fair hearing, and it appears to the court that it is necessary for a party to attend at court to ensure that she understands what she must do to comply with the special directions. Secondly, to be able to dispose of the claim, on the basis that one of the parties has no real prospect of success at a final hearing. Thirdly, to enable the court to strike out a statement of case, or part thereof, on the basis that it discloses no reasonable grounds for bringing, or of defending the claim.

When deciding whether or not to hold a preliminary hearing, the court must have regard to the desirability of limiting the expense of the parties that will be incurred in them having to attend court. The parties must be given at least 14 days’ notice of the date of such a hearing.

If all the parties agree, the court may treat the preliminary hearing as a final hearing.

At, or after a preliminary hearing, the court will do three things.

First, fix the date of the final hearing (if the court has not so fixed already), and give the parties at least 21 days’ notice of the same, unless the parties agree to accept less notice. Secondly, inform the parties of the amount of time allowed for the final hearing. Thirdly, give appropriate directions.

i. Additional or amended directions

The court may add to, vary, or revoke, directions (CPR 27.7).

j. Final hearing

There are six main rules for the final hearing (CPR 27.8).

First, the court may adopt any method of proceeding that it considers to be fair. Secondly, hearings will be informal. Thirdly, the strict rules of evidence do not apply. Fourthly, evidence need not be on oath. Fifthly, the court may limit cross-examination. Sixthly, the court must give reasons for its decision.

k. Non-attendance

If a party who does not attend the final hearing satisfies the following three criteria, the court will take into account that party’s statement of case, and any other documents that she has filed when the claim is decided (CPR 27.9).

First, at least seven days before the hearing, written notice (“notice”) that she will not attend has been filed with the court and served on the other party. Secondly, at least seven days before the hearing, she has served any other documents on the other party which she has filed with the court. Thirdly, in her written notice, she has requested that the court decide the claim in her absence, and she has confirmed her compliance with the first and second criteria.

Otherwise, the court may strike out the claim (CPR 27.9(2)).

The court may decide the claim solely on the evidence of the claimant if two conditions are satisfied (CPR 27.9(3)). First, a defendant does not attend the hearing, or give notice. Secondly, the claimant does not attend the hearing, or gives notice that she will not attend.

The court may strike out a claim, defence, and counterclaim if neither party attends, nor gives notice (CPR 27.9(4)).

l. Disposal without a hearing

If all parties agree, the court may deal with a claim without a hearing (CPR 27.10).

m. Set aside & re-hearing

Where three conditions are met, a party may apply for an order that judgment is set aside, and that the claim is re-heard (CPR 27.11).

First, she was neither present, nor represented, at the hearing of the claim. Secondly, she has not given notice to the court, in accordance with the rule for non-attendance at the final hearing (see above). Thirdly, the application must be made not more than 14 days after the day on which notice of the judgment was served on her.

Where these conditions are satisfied, a court may grant an application, but only if the applicant satisfies a further two conditions. First, she had a good reason for not attending, or being represented at the hearing, or giving notice to the court, in accordance with the rule for non-attendance at a final hearing. Secondly, she has a reasonable prospect of success.

If a judgment is set aside, the court must fix a new date for the hearing of the claim. The hearing may take place immediately after the set aside application. It may also be heard by the judge who granted the application.

An application to set aside cannot succeed where the claim was disposed of without a hearing.

n. Costs

There are three overarching rules governing costs of a claim that is allocated to the small claims track. First, pre-allocation. Secondly, after allocation. Thirdly, re-allocation.

i. Pre-allocation

CPRs 46.11 and 46.13 prescribe the rules for costs before a claim has been allocated to the small claims track (CPR 27.14(1)). In general, once a claim is allocated to the small claims track, the rules that apply to costs on the small claims track apply to the period before the claim was allocated to the small claims track, as well as after (CPR 46.11). The exception is where the court, or a practice direction, provides otherwise.

Any cost orders made before a claim is allocated to the small claims track will not be affected by allocation. In general, where a claim is allocated to the small claims track, and the court subsequently re-allocates the claim to a different track, any special rules about costs applying: 1) to the first track, apply up to the date of reallocation; and 2) to the second track, apply from the date of reallocation. The exception is where the court orders otherwise (CPR 46.13(2)).

Where a case settles before allocation, for example, and assessment of costs is on the standard basis, the court may restrict costs to those that would have been allowed on the small claims track, if the claim would in fact have been so allocated (CPR 46.13(3)).

ii. After allocation

The only sum that one party (“A”) can be ordered to pay to another party (“B”), in respect of B’s costs, fees, and expenses, including those relating to an appeal (CPR 27.14 and PD 27 at [7.3]) are:

1. fixed costs, attributable to issuing the claim, which

   1. 1. 1. 1. are payable under the rule prescribing fixed costs (CPR 45) or,

            2. would be payable under CPR 45 if it applied to the claim;

2. in proceedings which included a claim for an injunction, or an order for specific performance of a sum not exceeding the amount specified in PD 27 for legal advice, and assistance relating to that claim;

3. any court fees paid by that other party;

4. expenses which a party, or witness has reasonably incurred in travelling to, and from, a hearing, or staying away from home for the purpose of attending a hearing;

5. a sum not exceeding £95 for any loss of earnings, or loss of leave by a party, or witness, due to attending a hearing, or staying away from home for the purpose of attending a hearing;

6. a sum not exceeding £750 for an expert’s fees;

7. such further costs as the court may assess by the summary procedure, and order to be paid by a party who has ‘behaved unreasonably’;

8. Stage 1, and, where relevant, Stage 2 fixed costs, under CPR 45.18, where

   1. the claim was within the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims,

   2. the claimant reasonably believed that the claim was valued at more than the small claims track limit, in accordance with the relevant protocol, and

   3. the defendant did not pay those Stage 1, and, where relevant, Stage 2 fixed costs; and

9. in an appeal, the cost of any approved transcript that was reasonably incurred.

‘Behaved unreasonably’ does not necessarily include a party who has rejected an offer in settlement, but the court may take this into consideration.

The limits on costs also apply to any fee, or reward, charged by a person exercising rights of audience as a lay representative for acting on behalf of a party to proceedings.

iii. Re-allocation

Where a claim is allocated to the small claims track, and subsequently re-allocated to another track, the rule prescribing costs on the small claims track will cease to apply after the claim has been re-allocated (CPR 27.15). Fast track or multi-track costs will apply from the date of re-allocation.

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