Hello again and welcome back to our case of the week. This week is Anti-Bullying Week 2023 which takes place between 13th – 17th November and we’ll be looking at a recent case of a pharmacist who succeeded in his claims of harassment related to race. Last week’s case involved dismissal of an employee for failing to attend court hearings. Those that missed it can find it here.
Anti-Bullying Week is a reminder to stand up to bullying and discrimination and that it is OK to be different. In recent years, a lot has been done to raise awareness of mental health and recognise toxic workplace cultures that are failing to support and protect employees’ wellbeing. Recognising bullying and harassment is one thing but reporting it can often bring a completely different set of challenges.
There is a statutory definition for harassment in s26 Equality Act 2010, but surprisingly, bullying is yet to be defined by statute. Protections offered by law for bullying are also limited if they don’t relate to a protected characteristic. The ACAS Guide defines bullying as “unwanted behaviour from a person or group that is either offensive, intimidating, malicious or insulting and an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.“
Options for an employee who is a victim of bullying are limited to either reporting it and raising a grievance in the hope management address the concerns, or resigning and claiming constructive dismissal. The Claimant did exactly that in the case of Mr S Famojuro v Boots Management Services Ltd and Mrs E Walker.
The Claimant is black and of Nigerian national origin and at the time was working as a relief pharmacist for Boots. An incident occurred between the Claimant and two junior members of staff, Mrs Walker and Ms Daley, when a customer entered the store for a prescription. The prescription had been sent to another store to be dispensed and Mrs Walker told the customer they would have to go to the other store to collect the prescription. The Claimant overheard this and asked Mrs Walker to call the other store and ask for the prescription to be released in order for it to be dispensed at their store to save the customer a journey. The situation became heated with the junior members of staff disrespecting the Claimant by refusing to carry out the delegated task and undermining his authority.
Mrs Walker and Ms Daley described the Claimant as behaving aggressively, shouting and towering over them causing them to be fearful.
The Claimant filed a grievance and resigned claiming constructive dismissal.
The Claimant’s claims of harassment related to race and unfair constructive dismissal succeeded. The Tribunal found several inconsistencies in Mrs Walker and Ms Daley’s version of events from their statements and during cross examination.
The Tribunal also found Mrs Walker, Ms Daley and Ms Munson (a manager) did not provide the Tribunal with an adequate explanation for why they behaved as they did and that they failed to show there was no discrimination.
A remedy hearing will take place to determine compensation for the Claimant.
The Tribunal said the single most serious failure was the manager’s investigation. He failed in his approach as to whether race was a factor in the treatment of the Claimant and he put this down to the Claimant’s grievance not including that racist comments were made. He also relied on a witness who said nothing during the incident that could be described as discriminatory. The investigation completely failed to consider the possibility that race was a factor.
The managers were said to be completely out of their depth, had received no training in dealing with discrimination complaints and had a simplistic understanding of what discrimination is.
The Tribunal acknowledged that a failure to properly deal with a grievance will not necessarily amount to a breach of the implied term of mutual trust and confidence. However, in this case, they were satisfied that the failures were so fundamental that they were likely to damage the relationship of trust and confidence.
Raising a grievance should not make a situation worse for a victim of bullying in the workplace. Employers have a duty to provide a safe working environment and should recognise that presenting a complaint of bullying is challenging and lonely, especially with their own colleagues likely to be fearful in coming forward as witnesses.
Having anti-bullying policies are great in theory, but they must be implemented. Workplaces need to take accountability for the conduct of their employees and address toxic cultures.
Our very own Philip Hyland has published A Practical Guide to the Law of Bullying and Harassment in the Workplace which aims to give HR professionals and lawyers an easy-to-understand guide to the legal framework that governs workplace behaviour.