Gibraltar: Bullying At Work Briefing - Tribunal Case Note

A judgement has been issued in the first case to reach the decision process under the Employment (Bullying at Work) Act 2014. The various claims brought before the Industrial Tribunal included allegations of bullying and victimisation in the workplace. The judgement is important in that the statute is a 'Gibraltar-born animal' and outside the Act no statutory definition of 'bullying' exists. Moreover, there is no equivalent of the Act in England & Wales and no guidance is to be had from previous case law. The judgement will, no doubt, be the first of many dealing with this relatively new and untested piece of legislation.

Conclusion

The Tribunal ruled that the Respondent had not contravened the Employment (Bullying at Work) Act 2014, that the Complaint was not well founded and failed.

Background

The Complainant filed an Originating Application making claims for unfair dismissal; under the Employment (Bullying at Work) Act 2014 ("the Act"); under the Working Time Act 1999: and under the Equal Opportunities Act 2006. The Grounds of Resistance stated that the Complainant was dismissed for gross misconduct and that the Complainant did not have the required continuity of service to bring a claim for unfair dismissal. As a result, the Tribunal was left to determine whether the Complainant was: (i) subjected to bullying in breach of the Act on the various occasions set out in the Originating Application, and (ii) subjected to victimisation in breach of the Act.

The Law

Bullying

Under Section 6(1) of the Act, an employer must not subject an employee to bullying. The Act defines "bullying" as follows:"

4.(1) A person ('A') subjects another person ('B') to bullying where A engages in conduct which has the purpose or effect of causing B to be alarmed, distressed, humiliated or intimidated.

(2) In subsection (1) the reference to conduct includes-

  1. persistent behaviour which is offensive, intimidating, abusive, malicious or insulting;
  2. persistent unjustified criticism;
  3. punishment imposed without justification;
  4. changes in the duties or responsibilities of B to B's detriment without reasonable justification.

(3) Bullying does not include reasonable action taken by an employer relating to the management and direction of the employee or the employee's employment."

Victimisation

Section 7 provides that an employer must not subject an employee to victimisation (a) as to the terms of employment, (b) in the way he affords access, or by not affording access, to opportunities for promotion, transfer or training or for any other benefit, facility or service, (c) by dismissing that employee, or (d) by subjecting that employee to any other detriment.

Essentially, Victimisation is defined as treating an employee less favourably than the employer treats or would treat other employees in the same circumstances, by reason of the fact that, or by reason of knowledge or suspicion that that employee has (a) brought or intended to bring, or intends to bring, proceedings under this Act, (b) given or intended to give, or intends to give, evidence or information in connection with proceedings under this Act, (c) otherwise done, intended to do, or intends to do, any other thing under or by reference to this Act, (d) has alleged or intended to allege, or intends to allege that A or any other person has contravened this Act.

Burden of proof

The burden of proof is initially upon the Complainant to prove facts from which the Tribunal could conclude that, in the absence of an adequate explanation, the Act has been contravened and the Tribunal must uphold the complaint unless the Respondent proves that he did not do so. The burden of proof thereafter passes to the Respondent to prove that he has not contravened the Act (i.e. by providing an adequate explanation).

Interpretation of the Act

Outside the Act, no statutory definition of bullying exists and there is no equivalent of the Act in the law of England and Wales - it is a 'Gibraltar-born animal'. There is also no guidance to be drawn from previous case law on the Act, as this is the first case to reach the Decision stage.

In respect of victimisation, Counsel agreed that there was no requirement that the employee has to make express reference to the Act. It was also not disputed that the less favourable treatment can be suffered before or after proceedings under the Act are alleged or a complainant takes any action by reference to the Act.

As regards the bullying claims, the Tribunal found that the 4 sentiments specifically prescribed in Section 4(1) of the Act are strong ones and that their ordinary meanings include -

  • alarmed - frightened;
  • distressed - deeply upset;
  • humiliated - made to feel ashamed, stupid; and
  • intimidated - coerced, frightened, especially with threats.

The Tribunal found that the employer's conduct "should be assessed subjectively and can be an isolated action or manner of behaviour or a series of actions or manner of behaviour. Although the employer's conduct may be unintentional...the conduct must be of sufficient force and I think will generally carry some element of injustice - in order to cause (or be intended to cause) the serious adverse sentiments prescribed in Section 4(1 )." The Tribunal also found that the conduct in question will "...often carry an element of an abuse or misuse of power, and this is reflected in Section 4(1) of the Act by use of the verb "subjects" and by the examples of bullying provided in Section 4(2)."

The Tribunal stated that all that is required under Section 4(1) of the Act is "...that the bully's conduct has 'the effect of causing' the victim to be alarmed, distressed, humiliated or intimidated and the alleged bully's intent may therefore be irrelevant when assessing the effect of the conduct complained about." Importantly, however, the Tribunal also found that there was a line of English authority, with which it agreed, that "...when assessing "effect" it is unlikely to be the case that the purpose of the counter-party is completely irrelevant, since the context in which a statement is made or an act undertaken is likely to be material and relevant to assessing effect."

The Tribunal further found that, depending upon the circumstances, a dismissal may constitute bullying under the Act and that Parliament cannot have intended that dismissals effected in breach of the Act should be lawful. It was further held that Section 4(3) of the Act (i.e. Bullying does not include reasonable action taken by an employer relating to the management and direction of the employee or the employee's employment) was the necessary correlative exclusion, since it must be that many employees facing a performance, disciplinary or dismissal process will feel some degree of alarm, distress, humiliation and/or intimidation and that without Section 4(3), employers would be exposed to claims under the Act whenever taking disciplinary/dismissal action in respect of employees.

Findings

The Tribunal found that a normal disciplinary process was undertaken, which was handled reasonably and as sympathetically as possible by the Respondent. It further found that the investigation/disciplinary/dismissal process was not suggested, prompted or engineered (whether alone or in conjunction with other employees) in bad faith (for example, in order to remove the potential problems which the Complainant might cause) and that the process actually commenced was in the event based on one or more real and reasonable grounds (i.e. was not a sham) and was conducted reasonably. Thus, in any event, the investigation/disciplinary/dismissal process would fall under Section 4(3) and so would not constitute bullying under the Act.

Leaving aside the issue of the investigation/ disciplinary/dismissal process, there was also the issue of whether there were individual instances of bullying. It was claimed that each or all of the incidents constituted bullying under Section 4. The Tribunal ruled that none of the alleged incidents caused or had the purpose of causing the Complainant alarm, distress, humiliation or intimidation in breach of the Act. It added that had the Complainant viewed any of the incidents as sufficiently serious to have caused her to feel any of the prescribed emotions in breach of the Act, then "...she surely would have raised a grievance at the time, or at least would have articulated a complaint to someone sufficiently strongly for there to be evidence that there had been such a breach of the Act."

In respect of each element of the bullying claim, the hurdle which the Complainant did not succeed in overcoming was proving that she had suffered any of the emotions prescribed in the Act (i.e. alarm, distress, humiliation or intimidation). Save for her own, the Complainant did not put in any evidence in this regard, for example, from third parties (family members, colleagues, for example) who could corroborate that she had suffered any of the prescribed emotions. Accordingly, the Complainant's various claims that the Respondent bullied her in breach of the Act failed.

The Tribunal went onto say that '...had the Complainant succeeded in surmounting this hurdle, I accept that, as per Section 4(2) of the Act, "punishment imposed without justification", one of the statutory examples of bullying, would include a conspiracy to commence and the undertaking of a sham investigation/disciplinary/dismissal process. However, dismissing an employee (preceded by a disciplinary process) on its own cannot amount to bullying conduct if (i) the employee did not thereby experience alarm, distress, humiliation or intimidation; or (ii) the process was justified; or (iii) the process was reasonable action under the exclusionary Section 4(3) of the Act.'

As regards the victimisation claim, the Tribunal found that the Complainant had not discharged the burden of proof that there was any connection between the encounters with a fellow employee and the Complainant and the events leading up to the investigation/ disciplinary/dismissal process and/or the process itself and as such the Respondent had not contravened Section 7 of the Act.

Originally published by www.gibraltarlawyers.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions