The Verdict - May 2023
Epoq Legal UK
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Contents:
- Workplace bullying: what it is and why you should take it seriously
- New bill aims to ban fake reviews and subscription traps in the UK digital market
- Tribunal rules that failure to pay a bonus was a breach of contract
Workplace bullying: what it is and why you should take it seriously
The recent bullying row involving former deputy prime minister Dominic Raab has highlighted the serious and sometimes contentious topic of workplace bullying. Here we look what it is, its legal risks and how you can prevent it.
What is workplace bullying?
Bullying doesn't have a legal definition in the UK. However, it's generally understood as unwanted behaviour that's either:
Bullying can take many forms.
It could be a regular pattern of behaviour or a one-off incident. It often happens in person but also takes place online or over the phone, social media or email.
It doesn't have to happen in the workplace to be considered workplace bullying; unwanted behaviour at a work-related event, such as a party, also counts.
It also isn't always obvious – it may be subtle behaviour such as excluding or ignoring someone.
Examples of bullying include:
Despite not being covered by a specific piece of legislation, there are still legal protections against bullying. You should make sure your workplace is free from bullying or you may face unwanted legal claims.
Constructive dismissal claims
As an employer, you have a duty of care to look after the wellbeing of your employees while they're at work. This includes taking steps to prevent bullying.
If you don't and your employee feels they have to resign because you've failed to protect them, you may face a claim of constructive dismissal.
When bullying becomes harassment
In certain cases, bullying may even amount to harassment. Unlike bullying, harassment has a specific legal meaning.
Harassment claims can be taken to an Employment Tribunal. Someone could do this if they're being bullied because of a relevant protected characteristic under the Equality Act and the bullying has the purpose or effect of:
The relevant protected characteristics under the Equality Act are:
How to handle bullying complaints
You should look into any complaint of bullying and take it very seriously. If you don't, your employee might raise it as a formal grievance and take you to a tribunal if it's not resolved.
Consider implementing clear procedures for dealing with bullying. This will ensure that the complaint is resolved quickly and fairly, and will help avoid legal consequences.
Promoting dignity and respect in the workplace
However, it's far better to prevent bullying from occurring in the first place. To do so, you should promote a positive workplace environment based on dignity and respect.
An important part of this is having a well-designed policy on bullying that's clearly communicated to everyone. It should:
How we can help
You can use the Harassment policy in our Employee handbook to help. It addresses bullying and outlines procedures for handling bullying and harassment complaints.
New bill aims to ban fake reviews and subscription traps in the UK digital market
If it becomes law, the government's new Digital Markets, Competition and Consumers Bill will crack down on fake reviews and subscription traps, and help smaller businesses to grow and compete in the digital market.
Tackling bad business practices
The bill aims to tackle digital marketing strategies (such as fake reviews and subscription traps) and rip-offs so that consumers and businesses can take advantage of the digital market with confidence.
It'll do so by strengthening the power of the Consumer and Markets Authority (CMA) and improving its ability to protect:
For the first time, the CMA will be able to directly impose fines on businesses that break consumer law without going through lengthy court processes.
Fake reviews
The bill will address consumer concerns about fake reviews by introducing new laws that will penalise businesses that:
Subscription traps
The bill also introduces new rules for businesses that provide subscription services to consumers.
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If your business does so, under the new rules, you must:
The aim is to stop businesses from using subscription traps, i.e. when a business lures a consumer into agreeing to a subscription through the advertising of free trials or reduced price offers and then makes it difficult for them to exit that contract.
Boosting competition in the digital market
The bill also aims to boost competition in the UK digital market by loosening the control that a handful of tech companies have held over consumers and businesses.
It'll introduce new regulations that aim specifically to stop these companies from using their influence to stifle innovation and limit market access to smaller businesses.
It'll give a Digital Markets Unit (DMU) within the CMA new powers to identify and prevent anti-competitive conduct and carry out targeted interventions.
These changes to the competition framework will ensure that businesses of all sizes have the opportunity to compete and succeed in thriving digital markets.
When will the bill become law?
The bill was introduced to parliament in April 2023 and is expected to come into effect sometime in 2024, following parliamentary approval.
Tribunal rules that failure to pay a bonus was a breach of contract
A recent employment tribunal ruling has highlighted the importance of clearly understanding your contractual commitments to your employees.
The case
A woman worked as a family law executive and then later Head of Family Law at a law firm.
Under a bonus scheme, she was entitled to a bonus of 33% of the net billing above her target in a quarter.
The bonus was stated to be 'non-contractual and may be revoked or altered at any time upon immediate notice'.
As a counter to a job offer at another company, the firm made promises to her in an email, including that she would be promoted to director once she qualified as a chartered legal executive. Upon her acceptance of this offer, the terms in the email became terms of her employment contract.
However, despite receiving her CILEX qualification 3 months later, she wasn't promoted.
The firm then told her it'd be changing the terms of her bonus so it'd be based on payments received in a quarter, rather than billings. That month she had billed ￡20,000 but the firm only received ￡6,362 of it.
She objected to the change to the bonus structure but was told it was discretionary and could be altered with immediate effect.
Soon after, she resigned saying that she was owed around ￡7,000 from the first quarter of the year based on the 33% over-target figure.
She brought a constructive unfair dismissal claim to an Employment Tribunal on the basis of a breach of contract due to the firm's failure to:
Constructive dismissal
If an employee is forced to resign because they think their employer's conduct seriously breaches their employment contract, they can make a claim of constructive dismissal.
The tribunal had to decide whether the firm's conduct was a fundamental breach of her contract or showed that it had no intention of being bound by one or more essential terms of the contract.
If so, the lawyer was entitled to terminate her contract without notice and was constructively dismissed.
The tribunal
The tribunal agreed that the firm seriously breached her contract and upheld her claim for constructive dismissal.
It found that the bonus had contractual effect.
Although the bonus was stated to be 'non-contractual' and could be 'revoked or altered at any time upon immediate notice', this wording didn't allow the firm to amend or withdraw the bonus part-way through the quarter.
Because the firm made the changes after the quarter had begun, the lawyer was contractually entitled to the bonus for the first quarter of the year and not paying it was a fundamental breach of contract.
It also found that the firm's failure to honour its promised promotion amounted to a fundamental breach of contract.
As there was no potentially fair reason for dismissal, the constructive dismissal was also found to be unfair.
A further hearing now has to be held to decide the consequences.
What this means for you
This case shows the importance of honouring contractual promises of bonuses and promotions.
If you don't and your employee resigns because they think you've seriously breached their contract, you may face constructive dismissal claims.
Even if you have the discretion to amend or end a bonus scheme, you won't always be allowed to withhold bonuses that employees have already earned and accrued in line with the scheme as it was at the time.
If an employee has a contractual entitlement to a bonus and you fail to pay it, you have breached their contract and they can bring claims of an unlawful deduction from wages or constructive dismissal against you.
* This bulletin is for general purposes and guidance only and does not constitute legal or professional advice. Its contents should not be relied or acted upon without specific advice from a licensed legal practitioner.