Even if an employee’s bad behaviour towards another employee does not amount to bullying, an employer can still be acting unlawfully if it does not foresee such behaviour and take all reasonable steps to nip it in the bud, a recent Court of Appeal ruling makes clear.
A cleaning supervisor in a hospital claimed that she was subjected to aggressive, threatening and abusive behaviour by employees she was supervising on five occasions over a two year period. This included one male employee “roaring” at her, and another pinning her to a wall. She said their behaviour resulted in severe stress and anxiety, humiliation, pain and suffering and forced her to resign.
The High Court considered whether the supervisor had been bullied. It said indicators of bullying were whether the behaviour was repeated, enduring and showed signs of escalating and stated that it was a strict test. It ruled that there had been no bullying in this case in light of the fact that:
a) each incident had involved a different employee;
b) there were significant gaps between each incident; and
c) it was difficult to see what the employer could have done to prevent the incidents occurring.
The supervisor argued that the High Court should have considered whether the employer had been negligent, as well as whether there had been bullying, because it had breached its duty to provide her with a safe place of work.
One reason she thought her employer had breached its duty was because it had failed to punish each employee’s behaviour when it occurred, and she said that this gave other employees the impression that such behaviour was acceptable.
The Court of Appeal agreed.
The Court stated that making someone a supervisor created a foreseeable risk of conflict and confrontation between that person and the employees they were supervising.
This triggered a duty on the employer to take all reasonable steps to protect the supervisor from harm, to prevent conflicts/confrontation from occurring and to punish those at fault if they did.
The court said that what these reasonable steps would involve would vary depending on the on the supervisor’s particular job and the type of relationship they were likely to have with the employees they were supervising.
As the employer in this case was a hospital, cleaning standards were extremely high so the cleaning supervisor’s job, by definition, required her to impose high standards on her staff too - which was likely to lead to conflict and confrontation. The Court stated that the employer should have foreseen this and taken reasonable steps to reduce that likelihood and prevent repeat behaviour. However, it had failed to do either and had therefore failed to discharge its duty to provide a safe place of work.
The court recommended that employers should establish policies and procedures to reduce conflicts and confrontations and as far as reasonably possible any reoccurrence thereof.