Workplace Bullying: A Cautionary Trip Around the World

Most everyone now knows a little bit more about workplace bullying after the Jonathan Martin and the Miami Dolphins incident this winter. But there is probably quite a bit that employers and employees don't know about this health and safety issue.

In the United States, workplace bullying has been found to be four times more prevalent than sexual harassment. Yet, despite these findings, an employee can still be a target of bullying in the workplace in the United States and have no legal recourse because state and federal laws generally do not cover acts of bullying. Healthy workplace bills have been introduced to make repeated, severe, and pervasive behavior directed toward a worker illegal, with 23 bills presently active in 15 states as of June 2014.

Many are aware that costs of workplace bullying include time and lost production due to factors that include employees' preoccupation with negative circumstances and resulting costs to the company's overhead, loss of skill and experience when a worker leaves due to being bullied, lowered employee morale, medical and insurance costs, and harm to a company's reputation. For employees, the personal toll includes anger, feelings of frustration and helplessness, as well as numerous physical symptoms.

Less well known, though, are the following results:

Research has found that workplace bullying, an internal occurrence undertaken by manager and/or co-workers, leads to more workers leaving their job than violence, which is typically inflicted by sources external to a company. Research has also found that workers who witness bullying can have a stronger urge to quit than those who experience it firsthand. Findings from a July 2012 study of nurses in Canada showed that all who experienced bullying, either directly or indirectly, reported a greater desire to quit their jobs than those who did not. The 2014 Workplace Bullying Institute (WBI) survey of the U.S. workplace found that it appeared those who vicariously experienced bullying found that the severity of emotional injuries were similar in severity to injuries suffered by bullied individuals.

Employer Duties in Other Countries
The legal picture looks different in other parts of the world. Under workplace health and safety legislation, employers in most countries have a duty of care to provide a safe work environment for employees. This requirement is increasingly interpreted to require ensuring persons in the workplace are both mentally and physically safe at work and that their health is not adversely affected by work, and it also has been interpreted to require a workplace free from bullying.

Whether it is referred to as moral harassment, psychological violence, or mobbing, many European countries have enacted laws prohibiting this conduct in the workplace. These include Sweden, France, Norway, Denmark, the Netherlands, and Serbia. Finland's Occupational Health and Safety Act covers physical and psychological violence, including threats of violence, harassment, and bullying. Norway's Working Environment Act states that efforts to combat bullying are to be part of the systematic health, safety and environment work. France's Labour Code imposes an obligation on employers to prevent psychological harassment. Companies may be held liable for acts of moral harassment committed against their employees even if they are not the authors of the harassment and took proactive steps to prevent it. In 2012, France Telecom (now known as Orange) and its former CEO were placed under investigation over the company's alleged role in moral harassment and a spate of workers suicides.

Canadian provinces such as Ontario have also imposed obligations on employers to protect workers from psychological harassment in the workplace. An employer must have a written workplace policy with respect to harassment and violence and must provide a worker with information and instruction on the contents of the policy. An Ontario court awarded $1.46 million to a former Walmart assistant manager in 2012 for mistreatment by a boss, the highest such award in Canadian history. A jury found that she suffered daily abuse from her manager, who berated her with profane and insulting language over six months, often in front of others. It gave her nothing for sexual harassment and discrimination but awarded the following: from Walmart, $200,000 for intentional infliction of mental suffering, $1 million for punitive damages, and $10,000 for assault; and from her former supervisor, $100,000 for intentional infliction of mental suffering and $150,000 for punitive damages.

With Australia's introduction of the anti-bullying jurisdiction of the Fair Work Commission on Jan. 1, 2014, a worker in Australia who reasonably believes he or she has been bullied at work may apply to the Fair Work Commission and, if an investigation determines that workplace bullying has occurred, have a remedy. Worker includes an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, and an apprentice.

While the Fair Work Commission's stop orders for bullying do not contemplate compensation, compensation may be awarded under common law. This happened in spring 2014 when the Supreme Court of Queensland found that an employer breached its duty of care to a former assistant manager and caused her injury and awarded her just under $240,000. Here, having an anti-bullying policy was not enough.

Want to Know More?
"Bullying, Violence, Harassment, Discrimination and Stress - Emerging Workplace Health and Safety Issues" provides a global overview of laws and developments in over 50 countries in Europe, the Asia Pacific Region, the Americas, the Middle East and Africa, and the US. It is available through The Isosceles Group at http://www.theisogroup.com/publications and on Amazon.com.

Ellen Pinkos Cobb, J.D., a Senior Regulatory & Legal Analyst at The Isosceles Group in Boston, Mass., has a background in employment discrimination and has spent the past few years focusing on psychosocial workplace issues.

Posted by Ellen Pinkos Cobb on Jun 05, 2014