18 March 2015

A fracas in the workplace – more common than you might expect

Petrolheads hoping to tune in to Top Gear at the weekend were left disappointed. As has been widely reported, the remaining shows in the current series have been pulled from the schedules after Jeremy Clarkson was suspended following an alleged ‘fracas’ with a producer. It has been claimed that the fracas occurred after Clarkson was told by the producer that he could not order a steak from the hotel where he was staying because the hotel kitchen was closed.

Whilst we await the full facts, and completion of the BBC’s investigation, it is premature to comment on the specifics of that case. It is worth noting, however, that incidents similar to the one it is alleged that Jeremy Clarkson was involved in are more common that you might expect. The HSE website reports that in 2013/2014 there were 269,000 assaults at work and a further 314,000 threats of violence at work (although these figures include incidents where the assault/threat came from a third party rather than a colleague). Looking at the related problem of bullying, various surveys suggest that anything between one in ten and one in three workers will experience bullying at work, with the number of working days lost per year as a result claimed to run into millions.

Employers may also face claims from employees on the receiving end of violence or bullying. Such employees may allege that they have been (constructively) unfairly dismissed by virtue of the employer’s failure to prevent the relevant conduct. They may also bring claims under the Protection from Harassment Act 1997 or, if it is alleged that the conduct is connected to a "protected characteristic" of the employee (such as their race or gender), under the Equality Act 2010.

When faced with an incidence of violence or bullying in the workplace, therefore, the reaction of many employers will be that the (alleged) perpetrator should be dismissed. This may well be an appropriate course of action, but before reaching that point employers should ensure that they follow a fair process to reduce the risk of a claim from the dismissed employee. Employers should also consider whether there are any mitigating circumstances that warrant giving the employee a lesser sanction, and should ensure that the employee is not treated more severely than other employees in similar situations (unless there is a good reason for doing so).

Even if it is legally safe to dismiss an employee, the employer may not want to do so, particularly if the (alleged) perpetrator is a highly-valued employee. However, an employer should think carefully about the message it wants to give to the rest of the workforce and its health and safety obligations to the alleged victim – these encompass psychological as well as physical health. Failing to take appropriate action against a perpetrator of violence or bullying is also likely to make it easier for employees on the receiving end of such conduct to bring claims about it.

Of course, few cases are likely to be as complicated as the one the BBC is currently dealing with. The investigation is being carried out in the full glare of publicity, the alleged perpetrator co-presents one of the BBC’s most-watched shows whilst the alleged victim has apparently received online death threats. Whilst we don’t yet know what happened in that case, we can safely say that prevention is better than cure.


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