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Workplace Bullying: Understanding the Increased Legal Risks

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Workplace Bullying: Understanding the Increased Legal Risks Workplace Bullying: Understanding the Increased Legal Risks Presented by: Johan Lubbe Clear Law Institute | 4601 N. Fairfax Dr., Ste 1200 | Arlington | VA | 22203 www.clearlawinstitute.com Questions? Please call us at 703-372-0550 or email us at [email protected] All-Access Membership Program ● Earn continuing education credit (CLE, CPE, SHRM, HRCI, etc.) in all states at no additional cost ● Access courses on a computer, tablet, or smartphone ● Access more than 75 live webinars each month ● Access more than 750 on-demand courses Register within 7 days after the webinar using promo code “7member” to receive a $200 discount off the $799 base price. Learn more and register here: http://clearlawinstitute.com/member Clear Law Institute, © 2018 Workplace Bullying – Understanding the Increased Risks Presented by: Johan Lubbe, Esq. Littler Mendelson, P.C. Clear Law Institute Presented By Johan Lubbe, Esq. Littler Mendelson, P.C. New York Office (212) 471-4490 [email protected] www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 Introduction • “Bullying” or “mobbing” at work is receiving increased attention • Bullying is status-blind harassment, which affects the victim’s mental and physical health • Cyber-bullying – technology making bully instantaneous, personally – removed, and possibly easier • Presentation will address the origins of workplace bullying protection, recent legal developments (internationally and local) and some preventive strategies for proactive human resource professionals © Littler Presentation | 2018 Proprietary and Confidential DEFINING WORKPLACE BULLYING www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 What Is Workplace Bullying? • Rayner, Helge & Cooper (2001): Workplace bullying constitutes unwanted, offensive, humiliating, undermining behaviour towards an individual or group of employees. Such persistently malicious attacks on personal or professional performance are typically unpredictable, irrational and often unfair. This abuse of power or position can cause such chronic stress and anxiety that people gradually lose belief in themselves, suffering physical ill health and mental distress as a result. • Wayne State University: Verbal and nonverbal behavior that is persistent, unwelcome, and directed at a person such that the target’s sense of self as a competent worker is negatively affected. © Littler Presentation | 2018 Proprietary and Confidential Towards a Legal Definition: EU Definition Under Equal Treatment Directive Sexual Harassment (Article 2): Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment © Littler Presentation | 2018 Proprietary and Confidential www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 Towards a Legal Definition Irish Code of Practice - 2007 Workplace bullying is repeated inappropriate behaviour, direct or indirect whether verbal, physical, or otherwise conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once off incident is not considered to be bullying. *Irish Health and Safety Authority Code of Practice for Employers and Employees on Prevention and Resolution of Bulling at Work 2007 © Littler Presentation | 2018 Proprietary and Confidential Towards a Legal Definition: Canada: Quebec Statutory Definition of Psychological Harassment • Any vexatious behavior • In form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures • That effects an employee’s dignity or psychological or physical integrity • And results in a harmful work environment for that employee Quebec’s Act Respecting Labour Standards 2004 © Littler Presentation | 2018 Proprietary and Confidential www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 Towards a Legal Definition: Canada: Manitoba Expanded Definition of Harassment • Harassment includes severe conduct that adversely affects a worker’s psychological or physical well-being. – But excludes reasonable conduct regarding management and direction of employees. • Conduct is “severe” if it reasonably causes a worker to be humiliated or intimidated and is repeated, or in case of a single occurrence, has a lasting, harmful effect on a worker. * Regulation 147/2010 issued on October 15, 2010, amending the Workplace Safety and Health Regulations © Littler Presentation | 2018 Proprietary and Confidential Towards a Legal Definition: Spain – Madrid High Court of Justice Mobbing includes psychological terror and behaviours that create humiliating or offensive environment for the victim, which is directed in a systematic manner by one or more individuals, mainly towards one individual who, due to the mobbing is forced into a helpless and defenseless position. The mobbing conduct occurs frequently (at least once a week) and over a long period of time (lasting at least six months). *Decision of the Madrid High Court of Justice (as summarized by Vincent Calle Bulling and Harassment in the Workplace: An overview of the Spanish situation, IBA Employment & Industrial Relations Law Newsletter (Oct. 2013) © Littler Presentation | 2018 Proprietary and Confidential www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 Workplace Bullying– The Essential Elements The essential elements: 1. Repeated behavior 2. Inappropriate or abusive behavior 3. Direct or indirect behavior 4. Verbal, physical or otherwise 5. Conducted by one or more persons 6. At workplace and/or in course of employment 7. Reasonably undermining a person’s dignity or perceived self worth. © Littler Presentation | 2018 Proprietary and Confidential Typical Conduct of Workplace Bullies • Flaunting status (but not all bullying is from position of power) • Ignoring target employee’s contributions • Excessive or unwarranted criticism • Interrupting and preventing expression of opinions • Fail to respond to calls or memos • Exclude/failing to invite employee to meetings • The silent treatment • Shouting • Verbal attacks • Swearing/foul language at target employee • Spreading (untrue) gossip • Blaming target employee for others’ errors • Playing mean pranks © Littler Presentation | 2018 Proprietary and Confidential www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 International developments in Employer legal liability for workplace bullying UK – No Statute, But Some Cases • Equality Act of 2010 outlaws protected category harassment, but not bullying • ACAS Guide for Employers re Bullying and Harassment at Work (October 2010) – Accessible at https://www.gov.uk/workplace-bullying-and-harassment – Defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient” – Examples of bullying include: • ridiculing or demeaning someone – picking on them or setting them up to fail • overbearing supervision or other misuse of power or position • deliberately undermining a competent worker by overloading and constant criticism • ACAS Guide expressly states that “It is not possible to make a direct complaint to an Employment Tribunal about bullying as it is not related to a protected characteristic.” © Littler Presentation | 2018 Proprietary and Confidential www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 English case - Horkulak v. Cantor Fitzgerald International (2003) • Bullying conduct of CEO: Foul and abusive language Not give chance to respond to criticism Insisted on unattainable standards of performance • Effect of conduct: Severely undermined authority to manage employees, because CEO’s outburst were common knowledge Not given chance to re-establish trust Not properly raised and handled criticism of work performance issues © Littler Presentation | 2018 Proprietary and Confidential Cantor Fitzgerald International [2] • Court’s reasoning: Contractual duty of mutual trust and confidence (mutual cooperation) Can’t instantly dismiss senior manager’s exercise of judgment Can insist on high levels of performance, but level of rebuke must be proportionate Can’t use threats of termination to intimidate Modern law of employment contracts recognize self-esteem and dignity of employee © Littler Presentation | 2018 Proprietary and Confidential www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 English case – Majrowski v. Guys’ & St. Thomas NHS Trust (2006) • Female department manager bullied gay male employee • Bullying conduct included: 1. Excessively critical of and strict about employee’s time keeping and work 2. Isolated employee by refusing to talk to him 3. Rude and abusive to employee in front of other staff 4. Imposed unrealistic performance targets and threatened him with termination for not achieving targets • Claim brought under Protection From Harassment Act of 1997, an anti-stalking law. Act prohibits pursuing a course of conduct which amounts to harassment of another. • Court of Appeal (and affirmed by House of Lords) held employer is vicariously liable for this stalking/bullying at work: – “The purpose of this statute is to protect victims of harassment,
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