1^st August 2011

Abuse and Bullying: Behaviour not conducive to a happy workplace.

What are abuse and bullying the dictionary definitions are, "to make bad use of, to maltreat, to attack verbally, offensive language" "a person using strength or power to coerce others by fear, to persecute or oppress by force or threats"

It's fair to say we would all be deeply shocked to think bullying was going on in the workplace. But it's not just going on, sadly it is incredibly common.

Being aware of how we come across

The abuse and bullying can seem fairly minor to someone outside the issue but it is how it is perceived by the recipient that is the question. No two people are the same and we all face issues differently – for instance someone who's nature is to be quite forceful in the form of management could be felt to by bullying by someone else.

The key therefore is not how we feel we are behaving but how others see it. Often the so called perpetrator doesn't even feel they are bullying someone and are quite shocked when it transpires someone has an issue with them.

Unhappy staff = bad times

So how does this translate into the workplace? Clearly this is not something we all left behind at school, or that only happens on a building site.

If an employee feels they are being abused or bullied, they have a serious issue with their workplace and are not going to be as effective as a happy employee. To make matters worse it can snowball into a bigger problem involving more staff members.

The employer then has an issue with productivity and a general feeling of unease in one or many employees. The employer MUST act.

Worst Case Scenario

Having an unhappy workplace isn't the only thing an employer might have nightmares about. The worst case scenario is they could have a claim in the Tribunal against them.

What claim could the employee have?

1. Constructive dismissal (which we look at more in depth in the future) but it is suffice to say the employee has had enough, can prove the employer did nothing with the knowledge of the behaviour and had to leave their job or

2. Unfair dismissal (again which we shall look at more in depth in the future) but is when someone, possibly the bully, is dismissed as a result of their actions but there is a flaw somewhere in the dismissal.

All of these claims are expensive for the employer and best avoided. The Tribunal currently awards 1 months' salary for every year worked as compensation plus of course the statutory notice period. This is not to mention the man hours it takes in the lead up to the Tribunal case to get all your facts together and prepare (if you are representing yourself) or the man hours plus legal costs (if obtaining the use of a law firm).

For the employee they can be literally shattered physically by the experience and be putting their future career at stake, not to mention the effect that this has had on their home life.

The States of Jersey have a policy against bullying and harassment which Mr Frank Walker brought in, in his time in the States. The policy basically says this behaviour is not tolerated by any employee in the States. I am also aware a couple of other local business's have also adopted the same kind of procedure. It is of course not enough to merely adopt a zero tolerance policy, it has to be used. That is where large employers rely on their middle management, whilst smaller employers have to ensure they have their eyes wide open to everything going on.

What's Current?

Working abroad?

Being sent to work in the Cayman Islands may sound like an enticing prospect, however you may not be protected under the Employment Law in Jersey.

At this moment in time any employee of a Jersey company working abroad would not be protected by Employment Law in Jersey, even if their contract states that the correct jurisdiction for any claim is a Court of Jersey.

This is because at this moment an employee has to have worked "wholly or mainly" in Jersey in order to be seen as an "employee" under the Employment (Jersey) Law 2003, with the possible right to proceed with a Tribunal case.

This has caused much discussion in previous years as an employee could be employed by a Jersey company and then sent to work in maybe Dubai or elsewhere, perhaps never even working Jersey.

This was also the case in England up until recently, however they are now working towards a way to extend Employment law protection to employees sent abroad.

The most current case on this features school teachers and is, at the time of writing this article, in the Supreme Court. The Supreme Court ruled the teachers comprised one of the ‘exceptional' categories of overseas workers, acknowledged by the House of Lords, as having a sufficiently strong enough connection with Great Britain to be entitled to claim unfair dismissal. If you want to look it up or have trouble sleeping it is Duncombe and ors v Secretary of State for Children, School and Families (No.2). worst case scenario is they could have a claim in the Tribunal against them.

Lindsay Edwards-Thatcher

Lindsay Edwards-Thatcher is an Employment Law specialist and English solicitor who qualified in 1999. Since 2002 she has worked in private practice in Jersey and for over five years has provided specialist contentious and non contentious employment advice to various institutions in Jersey

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