Last year it was the Trades Union Congress which made headlines by designating 7 November as 'Ban Bullying at Work Day'. They published figures that suggested around two million people had been bullied at work in the previous six months and called on the Government to outlaw bullying at work, warning that the problem accounts for the loss of some 18 million working days each year.

This year in August it was a bullying at work court claim that hit the headlines. Helen Green a former Company Secretary employed by Deutsche Bank was awarded over £800 000 in compensation for the damage to her health caused by bullying.  Ms Green alleged that Deutsche Bank was vicariously liable for the psychiatric injury she suffered as a result of harassment and bullying by her fellow employees. Mr Justice Owen, at London’s High Court, said that the behaviour, which amounted to "a deliberate and concerted campaign of bullying" was a long-standing problem in the department.

The High Court found that the bank was in breach of its duty of care to Ms Green in failing to take any or any adequate steps to protect her from such behaviour. It said that Ms Green's line managers knew or ought to have known what was going on, and the bullying could and should have been stopped.

The High Court also found that the stress created by the relentless campaign of bullying went beyond that normally to be expected in the workplace and that it was foreseeable that some people would not be able to withstand such stress and consequently suffer some form of psychiatric injury.

Ms Green's case exemplified why organisations across the country are concerned to stamp out bullying: - because organisations that fail to do so risk paying a high price in sickness absence, potential court or tribunals awards, damage to reputation and adverse publicity.

What do we mean by "bullying"?
One of the difficulties with the issue of bullying at work is that there is no statutory definition of what is "bullying" behaviour.

Bullying normally relates to negative behaviour which is repeated and persistent. CIPD in its report "Bullying at Work, Beyond Policies to a Culture of respect"  says it is helpful to try to identify the nature of the bullying behaviour, which it says usually falls into a number of types: predatory; dispute related; escalating.

The Health and Safety Executive (HSE) regards bullying as a form of organisational violence which, if not dealt with properly, is a potential source of work-related stress.

What remedies are open to employees?
Employers can be liable for bullying and harassment either directly or vicariously and  employees have a range of potential remedies for bullying at their disposal.

· If the bullying is linked to their sex, race, disability, sexual orientation, religion or belief or (from this October) age, they may be able to show that they have been treated less favourably or harassed under discrmination legislation. Such a claim would have to be brought within three months of the act complained or (or within three months in the last of a series of acts complained of) and there is no limit in the amount of compensation that could be awarded by an Employment Tribunal.

· If the employee can show that the bullying led to a breach by the employer of the implied duty of mutual trust and confidence, they could resign and bring a unfair constructive dismissal in an Employment Tribunal. The claim would have to be brought within three months and the maximum amount of compensation that could be awarded is currently £58 400. 

· Perhaps the most common type of claim brought by employees who have been bullied at work is a common law claim of negligence such as the claim raised by Helen Green against Deutsche Bank. All employers, regardless of their size are under a common law duty to take reasonable care for the health and safety of employee's physical and psychological health in the workplace. To succeed in such a claim the employee would have to show that they suffered damage to their health (which in cases involving bullying usually involves damage to their psychological health, rather than physical health), that there was a link between the behaviour complained of and the damage to their health and that the employees injury was reasonably foreseeable. Proving forseeability is the highest hurdle for claimants bringing this type of claim. In Scotland a common law claim would have to be raised in the relevant Sheriff Court or the Court of Session within three years and there is no upper limit in the amount of compensation that could be awarded.

· It has also recently been confirmed by the House of Lords that liability for bullying can arise under the Protection from Harassment Act 1997, which was enacted primarily to prevent stalking. As the House of Lords decision in the recent case of Majrowski v Guy's and St Thomas' NHS Trust showed this legislation has wider implications, since its provisions do not just provide a criminal sanction against a person guilty of harassing another.  The House of Lords held in this case that an employer can be vicariously liable under this legislation for harassment committed by an employee in the course of employment. In this case the claimant was a clinical audit co-ordinator working for the Trust who alleged that his manager had bullied, intimidated and harassed him in the course of his employment with the Trust (which had ended some four years previously).  There is no cap on the amount of compensation that can be awarded under this type of claim and claimants have six years to bring the claim.

The Majrowkski case has substantial implications for employers as it creates a new type of remedy for employees experiencing bullying or harassment in the workplace.    Claimants need only prove that they have suffered "anxiety" or "distress" as a result of the harassment.  Importantly they will not have to establish a recognisable psychiatric condition which was foreseeable as is necessary in relation to common law claims.

Interestingly the TUC last year called on the Government to pass a new Dignity at Work bill designed to "outlaw bullying at work…help employers better get to grips with this ugly phenomenon of 21st century Britain at work.”  Arguably however given the array of potental remedies open to employees who have been subjected to bullying at work there is no need for specific anti-bullying legislation.

What should employers do to prevent bullying behaviour?
Most medium and large organisations have an anti-bullying policies in place. Drafting and implementing a policy is however only half the battle. Creating a culture which is intolerant to bullying behaviour and promotes dignity and respect for employees at every level and reacting promptly to compaints of bullying is the only way for organisations to stay free from the risk of costly litigation that can flow from harmful bullying behaviour. 

For HR professionals looking to convince senior managers these steps are worth the investment and time that may be required, it may be worth pointing out that the Health and Safety Executive estimated that the annual cost of bullying to employers is 80 million working days and up to £2bn in lost revenue. And if that isn't compelling enough there is always the thought of your organisation featuring, as Deutshce Bank did this year, in next year's inevitable bullying at work headline.

Robyn McIlroy Senior Associate, Employment Group, Pinsent Masons. For further information contact Robyn.McIlroy@pinsentmasons.com.

The information contained in this article is not a comprehensive statement of the law and is intended to be a synopsis only. Before acting on it detailed professional advice should be taken. Contact details for Pinsent Masons’ offices can be found on the External websites section.