§ 9 p.m.
§ Baroness Gibson of Market Rasen
My Lords, I beg to move that this Bill be now read a second time.
The aim of the Dignity at Work Bill is to counteract bullying at work and to enshrine good practice into law. The main objective is to prevent bullying, but if it does take place, then the Bill provides redress. In opening the debate, I shall explain what the Bill covers and why it is needed, as well as give noble Lords a flavour of what bullying is and what it does to those who are on the receiving end.
However, before I do so, I wish to place on the record my thanks to those who have helped me prepare for this evening. In particular, I wish to thank Chris Ball, a senior official of the union to which I belong and for whom I used to work, Amicus, formerly the MSF. Here I declare an interest. Amicus has been at the forefront of highlighting bullying at work. Since 1994, when the union launched its campaign against bullying, it has pressed for it to be recognised as a workplace issue. Chris Ball is the expert in the trade union movement on this subject. I also wish to thank the Clerks in the Private Bill Office for their involvement and their invaluable advice and guidance in preparing this version of the Bill. Thanks should also go to the Lords Library staff for their help with research related to it.
Turning to the Bill itself, Clause 1 confers the right to dignity at work on all employees and covers harassment and bullying which would constitute a breach of that right. It covers examples of bullying which are not inclusive, behaviour which should not be tolerated in the workplace and unjustified criticism which, if repeated, would breach the right to dignity at work. The reason for the emphasis on repeated action is because such actions could happen accidentally but, if repeated, they would fall foul of this legislation. The clause also covers situations with specific consequences: punishment or changes in an employee's duties and responsibilities to the employee's detriment without reasonable justification.
Clause 2 protects an employee if he or she brings proceedings under the Act. Clause 3 gives rights to contract workers, a group of workers that is often forgotten. Clause 4 allows complaints by employees who believe that their right to dignity at work has been breached to be presented to an employment tribunal. Clause 5 provides for an employer's defence against such claims. It covers the employer's appropriate policy under the Bill and its correct implementation in line with Schedule 1. Clause 6 allows for compensatory payment by the respondent if the employment tribunal has found a case proven and gives advice from an employment tribunal to a respondent about prevention or reduction of adverse effects on the complainant relating to any breach of the right to dignity at work. Clauses 7 to 9 are supplementary and relate to interpretation, the Short Title and the commencement, which will be two months after the Bill has been passed.
The Bill attempts to be fair to both employees and employers. In an ideal world, it would not be necessary. All employers would be good ones and would already have policies and practices in place which would prevent bullying in the workplace. But this is not an ideal world and employers are not all good ones. This Bill aims to correct those who are not.
Bullying is not a new phenomenon, but it is only in recent years that it has been identified and rightly recognised as a workplace issue. As Angela Ishmael wrote in her excellent book, Harassment, Bullying and Violence at Work, published by the Industrial Society:As employers move towards creating and maintaining a healthy working climate as a corporate priority, bullying and its effects have leaked through the organisations like a crack in a wall".Bullying is undoubtedly a great problem faced by many British workers. It affects all kinds of workplaces. I have known cases of bullying on the shop floor and in the office; in the voluntary sector, telecommunications, retail, catering, engineering, finance and insurance, the health service, manufacturing, universities and schools and the Prison Service. You name the workplace and bullying can be found. It is a very destructive force.
It is difficult to put a concrete figure on the number of workers bullied, but an NOP poll conducted for a TUC conference on bullying at work suggested that a staggering 5 million working people in the UK had either been bullied in the past or were currently experiencing bullying. Of course bullying does not only have an adverse effect on employees. Employers are also affected by it. Bullying at work costs businesses in employee absenteeism through ill health and lost effectiveness. Professor Cary Cooper of UMIST, an acknowledged expert in the field, has estimated that 40 million working days are lost each year because of bullying. In financial terms, this puts the cost to industry at £3 billion to £4 billion annually. On top of that, it brings to the workplace low morale, poor working relationships and a general depression of spirit. That is hardly conducive to high productivity and quality standards. Bullying blights lives and causes immense and acute suffering and stress.
In the course of the debate, we may be told that there are laws which adequately cover bullying at work. As a former trade union official, I would dispute that emphatically. In the past the UK Parliament has not focused on providing statutory protection against bullying at work. Instead it has concentrated on discrimination. That is fine when it comes to sex or race. But the laws covering sex and race do not adequately cover bullying. It is true that cases can he taken under the Sex Discrimination Act or Race Relations Act. But the great weakness here is that most cases of bullying cannot be shown to amount to sexual or racial harassment and therefore this legislation is not effective in that case.
331 On the face of it, the health and safety Act can be used by those facing workplace bullying. But again that Act does not specifically mention bullying. It concentrates on the,health, safety and welfare at work of all employees"—a much vaguer concept.
As I know from my years as a health and safety commissioner, the Act is rarely found to be effective for bullying cases. Indeed, because there is no specific law relating to bullying or harassment in the non-sexist or non-racist sense, the only way for an employee to proceed to an employment tribunal because of bullying is to resign from his or her work and bring a claim of breach of contract under the heading of constructive dismissal. That cannot be a just and proper way for an employee to have to proceed in this day and age.
The current laws are not only inadequate for the employee, they also expose employers to a wide range of liabilities without providing the legal tools or guidance to deal with potential bullying problems before they become serious. The existing laws do not help employers to deal with the problem of bullying in the workplace. At best they can provide only a certain financial compensation to an employee who by then has lost his or her health, job or both.
I can best illustrate the absurdity and ambivalence of the law by telling the House of the experiences of two members of my previous union. A young man and a young woman worked in a London teaching hospital. Both received appalling treatment at the hands of their male supervisor by whom they were constantly undermined and their lives made a misery. The young woman's bullying and denigration also included unwanted sexual advances. At the same time, the supervisor embarked on a campaign to humiliate and reduce the standing of the young man by a series of mean and malevolent acts.
They both went to the same internal appeal. The young woman was held to have been sexually harassed and the young man to have been bullied. Both sustained substantial financial losses as well as suffering emotionally. The young woman was advised that she had a sex discrimination claim which she lodged and eventually settled out of court. The young man had no legal basis for a claim and received no effective remedy for his very similar experiences. He would have had to leave his job had he wished to claim constructive dismissal, as I explained earlier. I believe that that highlights graphically why a new law is needed. If the Bill had been in place, both could have presented bullying cases and both could have received their just rewards.
The Dignity at Work Bill supplements existing employment legislation enabling employers to send a clear message to all their staff that dignity at work must be respected and, if they act quickly and fairly, avoid claims and resolve issues in a way that promotes better workplace relationships and higher morale.
I look forward to hearing the forthcoming speeches of your Lordships. I hope to receive a sympathetic response from the Minister. I beg to move.
332 Moved, That the Bill be now read a second time.—(Baroness Gibson of Market Rasen.)
§ 9.12 p.m.
§ Baroness Gould of Potternewton
My Lords, the House should be grateful to my noble friend Lady Gibson for reintroducing a Dignity at Work Bill, originally introduced in December 1996 by Lord Monkswell. However, I regret that it is necessary for her to do so. I believe that there has been clear evidence for many years now that unacceptable behaviour to employees in the workplace is widespread. Legislation is not only necessary but also long overdue.
Most definitions of workplace bullying share three elements, all to be found within the Bill: its effect on the recipient, not the intention of the bully; the negative effect on the victim; and the persistence of the bullying. As my noble friend said, it covers many situations and can take many forms. It is that aspect upon which I wish to concentrate my remarks. It can cover unfair and excessive criticism, humiliation, public insults, the constantly changing or setting of unrealistic work targets, withholding information, undervaluing efforts and shouting and abusive behaviour. Bullying is a sustained form of psychological abuse, a gradual wearing down process that makes the individuals feel demeaned and inadequate, and hopeless not only within their own work environment but also in their domestic life.
The recent research undertaken by the Manchester School of Management found that bullying was associated with a negative work climate, high workload and unsatisfactory relationships at work and often coincides with a change of management. That research, which was the first nationwide survey to be undertaken, covered 70 organisations with over 5,000 recipients, so it was a very substantial piece of work. It concluded that 10.5 per cent of people had been bullied in the workplace in the previous six months.
What the evidence clearly showed was that there has been no decline in bullying since the 1996 report by the Institute of Personnel and Development. At that time, the IPD concluded that one in eight people had been bullied in the previous five years, that it was commonplace and that it was getting worse. There are many examples to show that that prediction was absolutely correct.
Perhaps I may elaborate on some of the points made by my noble friend Lady Gibson. The Royal College of Nursing found only last year that up to one in six of nurses had been bullied. Its survey of 4,500 nurses showed that another member of staff had harassed 17 per cent of them in the previous year, and it is of particular concern that that proportion rises to 29 per cent among respondents from ethnic minorities. The serious spin-off is that one-third of those affected intended to leave nursing, which is tragic at a time when the Government are trying to recruit more nurses.
At an NHS trust in the South East of England, 38 per cent of the staff reported experiencing one or more types of bullying in the past year. A survey conducted 333 by the Grampian University Hospital Trust highlighted serious levels of bullying estimated by the unions to be 47 per cent. UMIST found that bullying was most common in the Prison Service and postal services, both at 16 per cent. In the average school nearly one in six teachers had been bullied in the past year. We have heard a great deal today and in the past couple of days, about assault by pupils. These figures refer to staff on staff and it is something which we must take very seriously.
In the words of Professor Cary Cooper of UMIST,the extent to which bullying goes on in British workplaces has reached phenomenal proportions".Increased pressure on staff and managers to meet targets, including unofficial targets, creates highly competitive environments where many individuals consider bullying as the accepted method of motivating staff and where harassment and bullying are seen as strong management and the most effective way of getting the job done. While victims are spread across all levels from shop managers to shop floor workers, 75 per cent of bullies are managers. That confrontational style of management, so often preached by management and business schools, has to be challenged.
Many employees feel that they have to put up with such behaviour for fear of further victimisation or being labelled troublemakers. It would seem that while ever aggressive management is part of the organisational culture, people will continue not to challenge individual bullying behaviour.
As my noble friend said, what these employers do not seem to grasp is that their behaviour can seriously backfire on them and that it is in fact counterproductive. They fail to understand that staff working in an atmosphere of fear and resentment do not perform well. Absenteeism through sickness increases, morale levels fall and staff resign. Workplace bullying has a significant effect on both mental and physical health which can lead to sleeplessness, back pain, panic attacks, depression, anxiety and other stress-related illnesses. Many millions of working days are lost each year because of bullying. Victims of workplace bullying take an average seven extra days off each year than those not bullied. This results in a significant loss of productivity in both financial and human resources.
The TUC estimates that the cost of stress and stress-related illness is £5 billion a year. However, the CBI put that figure much higher and estimate it at £12 billion a year, which is about £500 each year for every working adult. That is surely something that we cannot sustain.
In a Written Answer to a Question I submitted to my noble friend Lord Sainsbury, he made it clear that the Government were keen to create a culture where bullying is not acceptable, but that further research is needed to establish the real extent of the problem and how it manifests itself in the workplace.
I accept that the establishment of the Partnership Fund which he mentioned is to be welcomed as is the development of management standards by the Health 334 and Safety Executive. But I had hoped that he would mention and consider the question of legislation. I believe that it is only by specific legislation such as this Bill that we will be able to create an anti-bullying culture.
In replying to the Second Reading debate in December 1996, in which I was pleased to take part, the then Minister, the noble Lord, Lord Lucas, acknowledged that there was a real problem, but that the concept of dignity at work was difficult to incorporate in law; that the effects of the Bill would be to make the law more complex and confusing. Rather, I believe that it is the complexity of the many current pieces of legislation which allows bullying to continue.
I have never had the experience of my noble friend Lady Gibson in trying to work my way through employment law and I therefore cannot identify the interesting specific cases to which she referred. But I can look at and be bemused by the lists and lists of legislation which are supposed to have an effect in reducing bullying.
For example, we have protection against sexual and racial harassment and discrimination, and against discrimination against the disabled. Employers have a legal responsibility under Section 2(1) of the Health and Safety at Work etc. Act 1974 for the health, safety and welfare of their employees. Under the Criminal Justice and Public Order Act 1994, it is an offence to "intentionally harass, alarm and distress". There is the Protection from Harassment Act 1997 and the Crime and Disorder Act 1998, all of which can be used to challenge bullying at work. We need to add to this list the Employment and Race Directives under Article 13 of the EC Treaty, which we hope the Government will implement. No wonder it is possible to identify the wrong piece of legislation when you wish to challenge bullying by your employer.
I appreciate that the Government may well be reluctant to impose more regulations on business and industry, but, historically, evidence has shown that specific legislation is often necessary in order to change the culture at work. The health and safety legislation and the Disability Discrimination Act are but two clear examples of that.
I appreciate that there are many good employers with reasonable contracts of employment incorporating fair policies, but in 1996, when we had the previous debate, only 28 per cent of employers had adopted policies to overcome bullying. I am sure that that figure has increased but I do not know what it is today. Perhaps the Minister will be able to tell us. I hope that he will be able to say that it is 100 per cent and that this legislation is not necessary. But I have very grave doubts about that because there are still too many mediocre and bad employers.
If employers took a responsible stance and we had the ideal world described by my noble friend, this legislation might not be necessary. Unfortunately, that is not the case. Legislation is necessary for those employers who have no official policy, who have aggressive management styles and who have no intention of tackling this serious problem themselves.
335 I hope, therefore, as did my noble friend, that the Government will respond favourably to the principle of the Bill, if not to its every detail, and assist its passage through the House.
§ 9.22 p.m.
§ Lord Lea of Crondall
My Lords, I congratulate my noble friend Lady Gibson of Market Rasen not only on a timely debate but on the persistence she has shown in pressing ahead with the Public Bill Office and getting this far.
Both of my noble friends who have spoken have presented incontrovertible evidence that there is a major, unresolved problem. My noble friend the Minister will not be surprised to hear that we think this Second Reading is appropriate and timely because it concentrates the mind on the light shed by this Bill on some of the quite tricky issues in the framing of regulations pending in the Employment Bill.
As my noble friend Lady Gibson pointed out, the current approach, which relies on constructive dismissal, is not at all satisfactory. The question is whether we can pick up some of the ideas in this Bill and see what light can be shed on the problems in the debate on the Employment Bill. If I am stretching the procedures of the House by making this connection, I trust that I shall be allowed a degree of latitude because the dilemmas of employment law referred to by my noble friend Lady Gould are very much before us at the present time.
Let me try to identify where the key issues lie. Others will, equally legitimately, view the issues through a different prism. However, tonight's debate could throw some light on the dilemma in the following way. On the question of bullying, we have, at first sight, two legs of the proposed statutory procedures: a grievance procedure and a disciplinary procedure. Of course, there will be a connection—if, for example, a grievance is put forward about the failure of an employer to trigger a disciplinary procedure. That, very typically, is where we would find ourselves under the new arrangements on an issue of bullying.
Then there is the question of whether the procedure in that context should lean heavily on the matter being dealt with within the establishment, given the fact that the other route is to go straight to a tribunal. In the case of bullying, and a number of like issues, many trade union representatives would put a great deal of weight on having a satisfactory domestic procedure to correct the behaviour which is the subject of the complaint. I do not wish to move into the argument about the so-called "compensation culture". However, as my noble friend pointed out, constructive dismissal is not only a very blunt instrument; it also does not really provide what the person complaining about the problem would really like to see in a commonsense, although not perfect, world.
But who will hold management to account if we have only this blunt instrument to use? Indeed, quis custodies ipsos custodes, as they say in Wolverhampton. The procedural problem was raised only this Monday in Grand Committee on the 336 Employment Bill. The issue was whether some matters are inappropriate for the 28-day delay in going to a tribunal. So the issue is how bullying is to be specifically dealt with in the regulations under the Bill. On page 7 of its code, ACAS concentrates on the issue being dealt with as a disciplinary matter. However, it can also arise as a grievance issue. It must not fall between two stools; but, as a statutory procedure, it is quite tricky to get right if, as a proper and legitimate goal, we want the procedure to deal satisfactorily with the matter for all concerned in the establishment in as many cases as possible.
The topic strongly underlines the advantage—and, indeed, the necessity—of a degree of mutuality; in other words, joint ownership and joint commitment. Dignity is enhanced by trade union organisations, but we are not relying on that in this analysis. Nevertheless, there is no doubt that we need mutual confidence and a degree of mutuality, however one describes it, in the procedure.
We are aware that some procedures are not perfect under the voluntary arrangements that obtain in many parts of industry, but we have a new opportunity here with the 3 million workers who believe that they have, potentially, some new rights coming in their direction through the Employment Bill. We must not let them down. I refer to the 3 million workers who have no protection procedures to assist them at present A new focus will be provided—I take the analogy of the minimum wage—on the procedures to be covered as bench-mark minimum procedures.
We do not want in any way further to open the doer to those whose motive in advocating new statutory procedures is to deter ready access to the employment tribunals. However, there is undoubtedly a connection. Perhaps I may put the matter in more popular language: "If you don't want your dirty linen to be washed in public, let's settle the matter in the workplace". But on what terms do we settle, and what will be satisfactory as regards the procedures and the substantive outcomes of that settlement? That is the question upon which I wish to focus. I hope that my noble friend will find it to be a legitimate question. The only conclusion that one reaches from this analysis is that it requires Rolls-Royce procedures—if that is still I an appropriate metaphor.
As my noble friend Lady Gould has pointed out, some employers' organisations have often argued that all those matters are just burdens on business. That is a red herring—to put it in complementary terms to the way in which my noble friend put it—if the issue is a satisfactory domestic procedure versus an argument about how quickly you go on a legislative procedure to a tribunal. How can that be presented as an argument about burdens on business?
I hope that in his response tonight and in his further reflections on the scope, my noble friend the Minister will take advantage of some of the ideas in this Bill when considering the outstanding dilemmas in the other Bill currently before the House.
§ 9.30 p.m.
§ Lord Wedderburn of Charlton
My Lords, I rise in the gap, if I may, to offer a few very brief words, having happily succeeded in reaching the House in time to give a warm welcome to the Bill of my noble friend Lady Gibson of Market Rasen. I congratulate her on a Bill that would lay a new legal foundation to the philosophy, of which my noble friends have spoken, that human dignity and rights do not end at the office door or the factory gates.
In my submission, the Bill is particularly welcome for two features. The first is its concentration on the terrible problem of bullying, of which my noble friends Lady Gibson and Lady Gould have spoken so convincingly and on which our current law is so manifestly inadequate and confused. Even beyond the focus on bullying, I welcome especially a worker's right under the Bill to escape unjustified punishment and arbitrary change in his or her working life. I also welcome the right, so clearly set out, not to be victimised for pursuing proceedings for his or her rights to be enforced.
All those features need to be significantly strengthened in the current Employment Bill, of which my noble friend Lord Lea of Crondall spoke so provocatively. At this stage of the night, your Lordships would not thank me if I followed him in pursuing the detail of that point. I merely say that that Bill is still in Grand Committee, upstairs in the Himalayas of Committee Room 4. It is in its eighth day. Those interested in these matters who have not had the pleasure—or, indeed, the perspicacity—to visit its proceedings should do so and should read Hansard carefully.
I shall make only one comment on that. For all the other virtues of that Bill—and I insist that there are such virtues—parts of it are deeply unfair to working people and need to be improved. As my noble friend Lord Lea hinted, those issues inter-relate to tonight's Bill.
The second feature that I particularly welcome is that this Bill would protect all workers who perform personal work or labour. It is not limited to the legally more restrictive technical confines of the common law contract of employment. The width of protection of our employment legislation, which is so valuably raised by my noble friend's Bill, is a central feature on the future agenda of labour law.
So often today, those whose only way of feeding their families is the sale of their labour power, by hand or by brain, are spoken of as though they were merely items in a labour market, to be manipulated—
§ Lord Roper
My Lords, we all benefit always from the wisdom of the noble Lord, Lord Wedderburn, on these and related matters. But of course we do have a convention—that speakers speaking within the gap ought to restrict their remarks to four minutes.
§ Lord Wedderburn of Charlton
My Lords, I had thought that it was five minutes, and I had just reached 338 the four-minute mark. I shall, if I may, just complete my last sentences. I may get rid of some of the punctuation.
The Bill recognises the intrinsic humanity of the worker and initiates a domestic legal application of the first principle of the International Labour Organisation: labour is not a commodity. The worker is flesh and blood, and for all the defects that are now being suggested in current Bills, the Government should adopt this Bill.
§ Lord Rotherwick
My Lords, I very much appreciate the noble Lord giving way, but I should like to reiterate the words of the noble Lord, Lord Roper. I believe that gap speeches are meant to last only four minutes, and we are now into the sixth minute. I appreciate and enjoy the noble Lord's comments, but we are now into the sixth minute.
§ Lord Wedderburn of Charlton
My Lords, I shall complete the sentence, as I understood noble Lords wished me to do. I am sorry that the noble Lord is so anxious for me to cease my remarks. Perhaps he could get the Opposition to consider the Employment Bill.
§ Lord Rotherwick
My Lords, I am not anxious for the noble Lord to cease his remarks; I very much enjoy his constructive contributions. I am only asking for the procedures of this House to be followed. Thank you.
§ Lord Wedderburn of Charlton
My Lords, I imagine that the noble Lord's time is not counted as my time. However, I appreciate very much his enjoyment of what I say. I am very pleased to give him some pleasure for once.
I end by finishing my sentence. I hope very strongly that the Government will take up this Bill; that we will come to its Committee stage and make a good draft even better, perhaps by involving union representatives rather more than they have been in the current draft; and that the Government take away this draft and come back to us and include that in their legislation. I am sure that that will give a great deal of pleasure to us and, I am sure, to the noble Lord, Lord Rotherwick.
§ 9.37 p.m.
§ Baroness Barker
My Lords, I begin by observing the hour of our discussion. I cannot help but wonder whether, were we fully paid employees rather than noble part-timers, we might by now be in contravention of one working-time directive or another. I should also declare an interest. I am a member of the Transport and General Workers Union.
I am indebted to the noble Baroness, Lady Gibson of Market Rasen, for bringing before us a Bill on this important and much overlooked subject, and for 339 giving us an opportunity to hear some very powerful speeches—such as that made by the noble Lord, Lord Wedderburn—on employment and the current rights and experiences of workers. Before dealing specifically with the subject of the Bill, however, I should like to thank the noble Baroness, Lady Gibson, for producing a Bill that is concise, to the point and clearly presented. It is such a refreshing change to consider proposed legislation that does not consist of endless Henry VIII clauses and rafts of regulatory powers. I hope that the noble Baroness will become an industry standard for her own benches.
I read a great deal to prepare for this debate, everything from newspaper extracts to Hansard and the web. The more I read, however, the more I came to two realisations. The first was that, although I also regularly read employment law and personnel practice updates in the course of my employment, the issue of bullying had never featured in that reading. Secondly, I realised that, throughout the course of my working life in different organisations, things which I had witnessed were in fact bullying. I had never thought of that before. I understand that now and I appreciate the persistence of the noble Baroness in bringing this legislation before us. It is worthy of our discussion.
Other noble Lords have referred to the work in 1996 of Lord Monkswell in steering his Dignity at Work Bill through this House. For the first time that brought attention to something which hitherto had been completely unrecognised. That Bill was the product of research conducted by the union MSF. The debates on that Bill in your Lordships' House were, as ever, informed and incisive.
From those debates it became apparent that bullying in the workplace, although somewhat ill-defined, was widely understood, particularly by employees who had either experienced it themselves or had witnessed it happening to others. Those debates also began to set out the incidence of bullying at work. Other noble Lords have made reference to a study published by the Institute of Personnel and Development and mentioned some of the costs involved in this matter.
The noble Baronesses, Lady Gould and Lady Gibson, set out in some detail the various pieces of legislation to which someone at present can have recourse if they wish to attempt to bring a claim for bullying. I refer, for example, to the Race Relations Act, the Disability Discrimination Act and so on. I shall not go through them all again. However, I want to pick up the question of why we need to have specific legislation on this subject. It has become clear to me in my researches that because of the absence of any specific bullying legislation a great many people dream up or invent reasons to recast what is actually bullying as something else. That is extremely bad for management. To call something by another name and to call it racial discrimination or sexual discrimination, for example, when it is just plain bullying does not help either the business or the culture involved.
A couple of years ago I was on a training course led by a personnel manager. He took us through a number of different case studies in order to put across some 340 points. He described one case study in a large statutory organisation. He came to the crux of the matter and asked, "What happened next? Let me rephrase the question and ask any of you who ever worked for the NHS what happened next"? Three people put their hands up and said, "She went sick". The lack of specific legislation on bullying and its recasting as something else breed a culture in some organisations which is distinctly unhelpful. There is a powerful case for disentangling bullying from other things.
As your Lordships will know, the 1996 Bill foundered for two main reasons. First, it suffered the fate of many a Private Member's Bill; that is, death at the hands of the draftsman. The then government spokesman, the noble Lord, Lord Lucas, took apart the wording of the Bill with all the relish of a Minister unveiling the fruits of the toil of parliamentary counsel. One of the merits of the Bill before us today is that many of those criticisms, principally those of definition, have been taken into account by the noble Baroness, Lady Gibson. Clause 1 of the present Bill which seeks to define behaviours which would be deemed to constitute bullying is much more tightly defined. However, there are one or two difficulties to which I wish to return.
The second reason why Lord Monkswell's Bill met a swift end in another place was not the ill disposition or the then government, although, undoubtedly, that played a part, but rather the sense that specific legislation would be either an unnecessary burden on business or would fail to tackle the issue effectively. I suspect that there was also another factor although t was never explicitly stated; namely, a fear that the passage of such legislation would in itself lead to a rash of claims. The then government acknowledged that although bullying was a problem of some significance, its adverse effect on productivity, coupled with existing legal protection against explicit discrimination and protection on grounds of health and safety, for example, should suffice. Six years on we have another opportunity to assess the extent to which that strategy was correct and the extent to which there is a need for legislation now.
A number of noble Lords have cited some of the studies and pieces of research which have emerged since 1996. I wish to mention just two. In 1998 Staffordshire University published research in which 40 per cent of those surveyed had witnessed bullying and 18 per cent had experienced for themselves what they termed bullying. That in turn sparked other pieces of research, the most interesting of which found that priests and clergy have been among those who have, experienced that.
The research by Professor Cary Cooper and Helge Hoel of the Manchester School of Management at UMIST was quoted extensively by the noble Baroness, Lady Gould. I want to discuss two further points about it. The first involves the headline conclusions of that research, which was entitled Destructive Conflict and Bullying at Work. It concluded that bullying thrives in a management culture where the loss of emotional control goes unmanaged; that good employers need a policy to deter bullying, which states 341 explicitly that those who report incidents will not be victimised; and that bullying is often a correlation of autocratic, insensitive management styles, which need to be confronted and challenged. Each of those points should be readily understood by any employer who wishes to have a productive and thriving enterprise.
Secondly, the detailed findings of that study tell us a great deal more. The percentages of men and women who had been bullied were roughly equal. Those who were victims were most likely to be aged between 35 and 44, to be white and on full-time permanent contracts. Although managers were most likely to be perpetrators, they, too, could be victims. The significance of that data is that they indicate that bullying is not confined to particular professions or sections of the workplace. It can and does happen to anyone, but it is most likely to occur when other poor management practices are taking place.
That study defined the critical times at which bullying was most likely to occur. It cited factors such as periods of organisational change, the introduction of new IT systems, redundancy and restructuring. All of those are well-known pressure points in any organisation of any size. That valuable information is available now and the Government should be promoting it vigorously in order to enable employers to identify bullying and to take preventive or remedial action.
As I said earlier, the Bill has benefited from previous scrutiny. Clause 1 confers a right to dignity at work and provides a detailed but not exhaustive list of behaviours. That list is helpful and necessary. On 8th April 2001, Richard Wilson of the Institute of Directors wrote an article querying the need for legislation. He said:How would you distinguish between times when people do need to be criticised and encouraged to do better, and those when people are being treated in an unacceptable fashion?".There is plenty of relevant evidence from the world of education. Furthermore, in my field—social care—working definitions of abuse have been developed over the past 10 years. It is high time that employers caught up with many other fields and adopted the definitions in the Bill, coupled with the growing body of evidence from employment tribunals. In other employment matters, such as race and disability discrimination, employers are increasingly wising up to the fact that bad practice equals bad business. They should swiftly come to the same realisation about bullying.
There is one point of ambiguity in Clause 1. Subsection (2) does not make it clear whether an employee can make claims against a company if the bullying is caused by customers or clients. I ask the noble Baroness to address that point and say whether such a situation would already be covered by an employer's general duty of care. That is important for organisations such the Benefits Agency, where the main incidents of harassment and bullying come from clients.
Clause 5 offers a clear course of action that employers can take to avoid further action. Many noble Lords have cited the fact that at the moment the 342 only redress for many employees is to resign and claim unfair dismissal. That is an expensive and wasteful process for them to have to follow. The Bill addresses a problem that is not new; it is increasingly common. It does so in a way that is practical, pragmatic and designed to promote good practice.
I imagine that the Government may say that they do not want to place a greater statutory burden on employers. If that is the case, it is right for your Lordships to ask what the Government will do actively to promote employers to adopt a voluntary code of practice on this subject. What will they do to enable employers to recognise the problem and to deal with it? As one of the major employers in the country, what will they do to put their own house in order and to set the standard.
It is high time that staff who are victims of bullying are given information and support to enable them to seek a way out other than resignation from situations that, as the noble Baroness, Lady Gibson, has set out, are often extremely damaging. This measure is commendable and we on these Benches wish the noble Baroness, Lady Gibson, well, not just with this good piece of legislation, but with what, in reality, will be a longer campaign to educate employers to eradicate the scourge of bullying at work.
§ 9.51 p.m.
§ Lord Rotherwick
My Lords, I congratulate the noble Baroness, Lady Gibson, on bringing forward this Bill of good clarity. There is no specific legal definition of bullying. Harassment is interpreted in UK law only in relation to the Sex Discrimination Act 1975, as it implements the EC code. Employers have a duty to care for all their workers and a liability at common law under the following laws: the Sex Discrimination Act 1975 and the Race Relations Act 1976, already mentioned by the noble Baroness, Lady Gibson, and the Disability Discrimination Act 1995.
Harassment may be considered to be discrimination under the following Acts: Health and Safety at Work etc. Act 1974, and, as again mentioned by the noble Baroness, Lady Gibson, the Employment Rights Act 1996; but the Criminal Justice and Public Order Act 1994, which created a criminal offence of intentional harassment, and the Protection from Harassment Act 1997, which created a criminal offence of harassment and a right of damages for the victim, were not mentioned.
What is the problem? When there appears to be sufficient legislation to protect workers, it is surprising that it has been acknowledged that almost universally workplace bullying is a problem. That was recognised by all noble Lords who have spoken. Research undertaken by UMIST suggests that almost half of all UK employers have witnessed bullying at work. I believe that the noble Baroness. Lady Gibson, also stated some figures from UMIST. The Industrial Society suggests that 270,000 employees in the UK take days off due to distress, which is probably caused by bullying or similar actions. Bullying may play a significant part in creating stress. Around six per cent 343 of companies in the UK have specific anti-bullying policies, notably Littlewoods, BT and Liverpool City Council.
Will more legislation tackle workplace bullying where past legislation has failed? Research undertaken by UMIST suggests that bullying is more prevalent in the public than in the private sector, as has been said by noble Lords. Bullying is at its highest level in teaching, in the Prison Service, and in the post and telecommunications sector. Autocratic and divisive management styles, high workloads and rapid changes cultivate bullying stress styles, as the noble Baroness, Lady Barker, said earlier.
Can the extra burdens on small businesses and the public and voluntary sectors be justified with more legislation? Large private sector employers with adequate resources can and do use cost/benefit analysis to underpin a business case to tackle workplace bullying. But it is questionable whether small businesses have adequate resources to carry out similar risk assessment. This is a complex and costly area for any employer considering the introduction of dignity at work policies. The employer should take into account not only that people who are being bullied have employment rights, but that those being disciplined for bullying also have rights. For instance, if an employer does not strike the correct delicate balance in addressing an employee over alleged bullying, that employee may feel that the employer has been heavy-handed and has tried to dismiss him or her and can make a tribunal claim against the employer.
Can legislation be used surgically to solve a workplace problem without secondary effects? While there is an argument as to whether or not we want this type of legislation, it is worth bearing in mind what Jan Long, the clinical adviser at the Wiltshire and Swindon NHS Trust's staff support centre, said. He warns that accusations of bullying are already used to cover up poor performance. He goes on to state:Once accused managers find themselves in an agonising situation where it is almost impossible to defend themselves. The knock on effect is that managers are finding it increasingly difficult to discipline staff. Sadly, this is especially true when dealing with sensitive situations—such as with members of minority groups".Another example is that of Mr Richard of the Institute of Directors who claims that any legislation is fraught with difficulties. He asks:How would you distinguish between times when people need to be criticised and encouraged to do better, and those when people are being treated in an unacceptable fashion?".However, on the other hand, the TUC Secretary, John Monks, is calling for legislation to address workplace bullying directly. Mr Monks believes that this is the only way to ensure that every victim is protected.
In conclusion, the Bill encourages businesses and organisations to develop their own dignity at work policies. Workplace bullying appears to be a widespread phenomenon. It is most clearly unacceptable. It is traumatic for employees and for employers, and damaging for the business in general. The aims of the Bill are admirable. We support the 344 measures that aim to tackle bullying in the workplace and that raise public awareness of its existence. After all, if a company has a well-publicised anti-bullying policy, it can learn to recognise and then minimise the problem. However, it is unclear whether solutions lie in more legislation which possibly makes the situation more complex and confusing.
We should all aspire to the universal adoption of good practices. Indeed, most people work best under such conditions. There is also a question of whether legislation could be used well by the public sector where the prevalence of "destructive conflict and bullying at work" is worse, as we have already said, in the post and telecommunications sectors, teaching and the Prison Service. However, it is unclear whether such legislation would be appropriate to the private sector which has limited manpower and financial resources.
We should also remember that small businesses comprise 99 per cent of all businesses in this country: they employ 44 per cent of the private sector workforce; and generate 37 per cent of the output. They also create virtually all new jobs in the economy. There has been a torrent of legislation in this area. Indeed, there have been over 3,800 new directives in this year alone. It is interesting to note that Britain has fallen from ninth to 19th in the world competitive league. With facts like these one has to question whether this sort of well meaning legislation will not end up being detrimental to businesses and their employers as a whole.
§ Baroness Gould of Potternewton
My Lords before the noble Lord sits down, perhaps I may ask him a question. At the beginning of his speech, he said that past legislation has failed. He went on to give us explicit details of the problem. If it has failed, what is the solution? If we should not have specific legislation, how do we ensure that legislation works?
§ Lord Rotherwick
My Lords the noble Baroness, Lady Gould, raises a good question, and one that employers and government would have managed to address if it was not difficult. The problem of bullying is a real problem to business in as much as it will lose it competitiveness, but in balance with that, the complexity of introducing more legislation—and the fact that in the past, targeted legislation has not succeeded—poses a problem. I for one do not feel competent or qualified to suggest which way we should go. I only raise the questions as I see them.
§ 10.1 p.m.
§ Lord McIntosh of Haringey
My Lords, everyone who has taken part will join me in thanking the noble Baroness, Lady Gibson, for the way in which she introduced this Private Member's Bill. She did it so well that she achieved almost universal support—at least for the principle behind the measure. She deserves the thanks and congratulations of the House.
I must start, as in all cases of Private Member's Bills, by saying that the Government do not take a formal view for or against the Bill. We shall certainly take no 345 steps to oppose its progress through your Lordships' House. I say that without any regard to the merits or otherwise of the Bill.
Having said that, the noble Baroness knows as well as I do that, in its election manifesto, the Labour Party made a commitment to tackling this problem. The manifesto states:We are committed to working with managers and employees to reduce the problems of bullying and violence in the workplace. As a major employer"—by that, we mean as a public sector employer—our ambition is to improve the quality of work for our employees—helping recruitment and retention".So we share the objective of the noble Baroness and have behind it a practical objective, as it were, because we believe that good relations and a good culture in the workplace are beneficial not only for the individuals concerned but for society and the economy.
It is my duty to say how seriously we take bullying at work, how strongly we condemn it and that we consider that a combination of legislative action and of an approach to the culture of bullying and harassment at work must be the solution to the problem.
Let me start with the legislative side and existing law. The laws already in place cover a wide range of definable and undesirable behaviour. In effect, we have pinpointed specific issues and legislated against them. The list includes the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, which all include provisions on harassment. Then there is the Protection from Harassment Act 1997, the Health and Safety at Work Act 1974 and the Employment Rights Act 1996, which includes constructive dismissal provisions—an issue to which I shall return.
All of those laws provide protection and enable individuals to seek remedies as a result of detrimental behaviour against them. Indeed, we are considering extending those measures and have been consulting on the provisions of the Article 13 directive, which would extend protection on the grounds of religion and other issues.
I have listened carefully to what has been said about the inadequacies of these laws. The noble Baroness, Lady Barker referred to discrimination against a young woman and a young man and to the fact that, under existing legislation, only the young woman had a remedy. That is certainly a valid point. However, I want to turn to what is proposed, and in particular to the proposals regarding grievance procedures in the Employment Bill which is before this House.
The Dignity at Work Bill calls for employers to have procedures in place whereby employees can bring complaints to them about their treatment. The Employment Bill contains important provisions to ensure that all employees have access to a grievance procedure. That is a major advance. We estimate that six million employees should benefit either because their employers presently have no procedures, or because they have procedures which are inferior to the proposed new statutory minima.
346 The application of the new statutory procedures as an implied term in all contracts of employment should provide an important means for employees to raise their problems at work and to have them addressed by their employer at an early stage. That is likely to build on, and strengthen, the code of practice for discipline and grievance procedures produced by ACAS which can be taken into account at an employment tribunal. ACAS recommends that employers have this or a similar code in place and provides a national advice helpline service for employers and employees in addition to guidance booklets on bullying and harassment.
I turn now to the issue of constructive dismissal. Employees who have not been expressly dismissed but who consider their employers to be in fundamental breach of contract may be entitled to resign and regard themselves as having been forced to do so by the employer's breach of contract. Subject to the necessary qualifying service, they may then be able to make a complaint of unfair dismissal to an employment tribunal. A mutual duty of trust and confidence is implied in all contracts of employment. If this breaks down because of an employer's unacceptable conduct, or indeed because of conduct that takes place for which the employer has a duty of care, the employee may be able to claim constructive unfair dismissal under the Employment Rights Act 1996. Constructive dismissal is a complex area of employment law: whether an employee has been constructively unfairly dismissed is a matter which only employment tribunals can determine in the light of all the circumstances.
I do not claim that the legislative position as I describe it—at present and as proposed—covers the range of remedies which this Bill would provide. It is the case that the law only covers specific and definable areas of undesirable behaviour. That is the crux of the matter. Bullying is extremely hard to define. I agree that there may be cases where people feel aggrieved and upset, but their treatment may be hard to define in law. The crucial point is that what is bullying to one person may not be bullying to another. It relates to the culture of the workplace and how the individual reacts to this treatment.
As the debate has made clear, this is a very subjective and complex issue. I believe that a large proportion of cases will be covered by the law as it is and as it will be; but that does not mean to say that we should not act to prevent other cases from slipping through the net of legislation.
What I am saying is that further legislation would not necessarily help to clarify people's feelings or reactions to situations. It would not necessarily help the individual to find a remedy. So we are taking action specifically on the issue of bullying, intended to tackle the root cause of bullying in the first place—that is, the culture in the workplace. I do not claim that this is legislative action. I am saying that this is complementary to legislative action.
The Government are working with the Health and Safety Executive to develop management standards which may, in time, form the basis of a code of 347 practice. The standards are designed to help managers develop policies to tackle bullying and to improve relationships in the workplace. Of course, this will not affect the bad employers. But I do not believe that this Bill, with all its merits, will work in practice to eradicate bullying in the workplace. We all agree on the objective of eradicating bullying, but we disagree about how to achieve that. It is better to publicise the existing laws, take steps—as we are doing—to improve access to better grievance procedures and promote a better culture at work. That is the Government's approach, and I hope that it will be felt that we are not, in any sense, unsympathetic to the objectives of the Bill.
§ Lord Wedderburn of Charlton
My Lords, my noble friend the Minister mentioned the Bill that is in its eighth day in Grand Committee. I have just been reading Hansard. Would the Minister confirm that the matters on which he relied so strongly—understandably—in Schedule 2, namely, the procedures that, as he rightly said, are implied in every contract, have been a matter of much discussion in Committee? The House should know that, during those discussions, the Government agreed to consider again the structure and detail of Schedule 2 and the statutory procedures over the Easter recess.
§ Lord McIntosh of Haringey
My Lords, I can certainly confirm that those matters were the subject of exhaustive debate in Grand Committee. As with so many points raised in Committee, the Government have indicated a willingness to consider them before Report.
§ 10.11 p.m.
§ Baroness Gibson of Market Rasen
My Lords, it is late, and I shall be brief. I sincerely thank noble Lords for their contributions.
I thank my noble friend Lady Gould of Potternewton for her exposition on bullying and its effects and the complexity of the current legislation. My noble friend Lord Lea of Crondall related the Dignity at Work Bill to the Employment Bill. I am sure 348 that those of us involved in the Employment Bill will consider what he said further. I know that my noble friend, Lord Wedderburn of Charlton, came in particularly to take part in this debate. I thank him sincerely. His vast knowledge of employment law is second to none. I appreciate his contribution.
I thank the noble Baroness, Lady Barker, for her kind words and for her well researched, thoughtful and helpful speech. She raised a query about customers and clients. The answer is that I am not sure about that matter; I shall take it away and consider it further.
I thank the noble Lord, Lord Rotherwick, for speaking in the debate. He gave instances of anti-bullying policies. I am pleased that they are in place. I wish that there were more of them. The noble Lord raised the question of the burden on small businesses. I am very aware of that issue. My grandparents and my father were in small businesses, so I am aware of the burdens on them. However, I believe that, if legislation is clear, it helps smaller employers. The current procedures lack clarity and specificity. If we bring in a Bill of this kind —it is much clearer, as noble Lords have said—it would help smaller employers.
I thank my noble friend the Minister in particular for the way in which he responded. I am afraid that I remain convinced that the current law is inadequate. I assume that, when the Government promised in our manifesto to stop bullying, they did not think that it was too difficult to define. I did not think that the Bill would ever totally eradicate bullying; no legislation could. We still have sex and race discrimination. However, the Bill would help.
Finally, a number of points were made in relation to amendments to the Bill. They will be most welcomed by me in Committee. The Bill was never written in blood on a stone and I shall appreciate any amendments which noble Lords believe will assist it as it goes through the House. I ask the House to give it a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at a quarter past ten o'clock.