News and Insights
28 September 2016
There is an implied duty of mutual trust and confidence in every contract of employment.
This duty covers a non-exhaustive range of sub-duties, such as the duty not to take part in, endorse or allow physical and verbal abuse and the duty not to require an employee to carry out increased duties without providing them with sufficient support.
The terms ‘harassment’ and ‘bullying’ have both been defined in different terms but are often used interchangeably. Bullying is often a form of harassment and both can take the form of physical, verbal and non-verbal conduct.
Broadly speaking, harassment is any unwanted conduct which has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile or degrading environment. Examples are invading personal space, unwelcome sexual behaviour and offensive comments or gestures. Bullying is offensive, intimidating, malicious or insulting behaviour, which makes the recipient feel vulnerable or threatened. Examples are shouting, abuse of authority, making threats and using intimidating levels of supervision.
An employee who is uncertain as to whether the conduct they are being subjected to amounts to bullying or harassment should consult their HR Department or the Jersey Advisory and Conciliation Service (JACS) for advice.
An employee who has been subjected to bullying or harassment should initially consider making an informal approach to the perpetrator. Failing this, the employee should make a complaint in writing to an appropriate senior member of staff. Some employers will have a grievance policy for dealing with such complaints and others will have a separate anti-bullying and harassment policy.
Bullying and harassment in the workplace may ultimately result in legal action. As there is currently no discrimination legislation in Jersey the only employment law remedy available to victims of bullying and harassment is to resign and instigate a claim for constructive unfair dismissal through the Jersey Employment Tribunal.
Funding can be an issue for employees as the Jersey Employment Tribunal does not currently have the power to award costs to the successful party. It is however worth checking your household insurance policy to see if legal expenses insurance is attached to it. Alternatively those who are Union members may apply to their Union for funding.
There is a limit on what the Employment Tribunal can award in successful unfair dismissal claims. There are many instances where the employment law remedy is inadequate, bearing in mind that the employee may have suffered a serious psychiatric illness and be unable to return to employment for some time, or indeed at all. In such cases there is an additional option available to the employee which is to consider bringing a claim for damages in respect of personal injury against the employer.