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Think about sexual harassment. It’s not done. And yet until not that long ago it was something that was done flagrantly – and constantly – with a wink and a nod. It still happens, but less, and public perception has changed.
Yet in the United States, workplace bullying has been found to be four times more prevalent than sexual harassment.
It’s not just the United States that has a problem. At the Work, Stress, and Health 2011 conference, bullying expert Staale Einarsen of Norway described the workplace bullying field as “exploding.” And in Denmark, an article in the Copenhagen Post online in March 2010 quoted the Minister of Employment as stating that workplace bullying had become such a huge problem across the country that a special system needed to be set up to tackle it.
In general terms, bullying describes a wide variety of negative workplace behaviors including verbal threats, personal attacks, humiliation, innuendo, and deliberate isolation of a colleague. Separate incidents may be relatively innocuous but are often sustained or persistent in character, with a cumulative negative effect.
Workplace bullying has been identified as one of the major contemporary challenges for occupational health and safety and linked to other emerging risks such as work-related stress and violence. These hazards are often termed psychosocial risks.
Psychosocial factors such as bullying are now being generally acknowledged as global issues, affecting all countries, professions, and workers. A recent Monster Global Poll bears this out. The poll, run from May 1-14, 2011, surveyed workers worldwide, and posed the question, “Have you ever been bullied at work?”
The 16, 517 responses received indicated the following: 64% answered that they had been bullied, either physically hurt, driven to tears, or had their work performance affected; 36% replied that this had never happened to them; and 16% answered that they had seen it happen to others. An astounding 83% of European respondents reported that they had been physically or emotionally bullied, while the percentages were 65% in the Americas, and 55% in Asia.
In many countries, new legislation has been coming into force or new provisions have been incorporated into existing legislation to protect workers from bullying. Canada, Australia, and nine European countries have enacted anti-bullying laws, including Sweden, France, and Denmark. Recently, a new Serbian law prohibiting workplace bullying became effective and, according to the Federation of European Employers, gave rise to over 400 court applications – in only the first month of its coming into force.
Other countries have opted for non-regulatory instruments, such as codes of practice and provisions in collective bargaining agreements.
Research worldwide has also found that bullying, an internal occurrence undertaken by manager and/or co-workers, leads to more workers leaving their job than violence, which is typically inflicted by sources external to a company.
Laws in Effect
Under workplace health and safety legislation, employers have a duty of care to provide a safe work environment for employees, visitors, and contractors. This requirement is often interpreted to require ensuring persons in the workplace are both mentally and physically safe at work and that their health is not adversely affected by work, and has been also interpreted to require a workplace free from bullying.
EU-OSHA’s Europe wide establishment survey on new and emerging risks (ESENER) stated that management of work-related stress, violence, bullying, and harassment fits clearly within the EU framework of OSH management as set out in Directive 89/391/EEC.
In Germany, the Ministry of Labor and Social Affairs website, on its page “Bullying at work” states, “Employers are obliged to protect their employees’ right of privacy and health. They must therefore prevent mobbing, act against employees who mob others and take all possible measures to prevent mobbing in their companies.”
Early European countries to enact workplace bullying laws were Sweden and France, with Sweden enacting a 1993 statutory provision against bullying entitled “Victimization at work”. France subsequently introduced an obligation on employers to prevent psychological harassment, and countries including Norway, Denmark, and the Netherlands, have followed suit. The United Kingdom does not have a specific law against bullying in the workplace, but claims may be brought under a variety of other laws.
Countries outside of Europe have also recently joined in prohibition of workplace bullying, also known as psychological harassment or psychological abuse. In 2011, the Canadian province of Manitoba imposed new obligations on employers to protect workers from psychological harassment in the workplace as well as new employer requirements under an amendment covering workplace violence and harassment.
Queensland is one of two States in Australia with a Code of Practice specifically for workplace bullying. For the first time in Turkey, pursuant to an amendment to the Debts law in 2011, an employer must protect all employees from psychological abuse in the workplace.
Belgium, in a 2007 decree concerning the “Prevention of Psychosocial Load Caused by Work, including Violence, Harassment, and Sexual Harassment at Work”, addresses the prevention of detrimental effects of work on the physical or mental health of a person by requiring the employer to perform a risk analysis, taking into account situations causing stress, conflict, violence, harassment, or sexual harassment at work; determine prevention measures on the basis of the analysis; take all necessary measures to ensure that employees have all necessary information available with regard to the results of the risk analysis, applicable prevention measures and procedures; and ensure that all workers receive all necessary training to enable them to adequately apply prevention measures and procedures. A new subject matter, psychosocial risks, but addressed by familiar- sounding occupational health and safety requirements.
Laws Yet to Come
In August, 2010 the Workplace Bullying Institute (WBI) commissioned Zogby International to conduct a survey of adult Americans. The results showed that 35% of Americans report personally being bullied. By including those who only witness it, 50% of have experienced bullying, directly or vicariously, at work. Another 50% say that have neither experienced nor seen it.
This study was a follow-up to a 2007 WBI-Zogby survey, the comparable prevalence was then 37%. The poll defined workplace bullying as “repeated mistreatment: sabotage by others that prevented work from getting done, verbal abuse, threatening conduct, intimidation or humiliation.” Of the WBI-Zogby respondents, 64% supported having laws to protect workers from “malicious, health-harming abusive conduct” committed by bosses and co-workers (the specific language contained in the introduced bills). 23.8% opposed laws.
Despite these findings, an employee can still be a target of bullying in the workplace in the United States and have no legal recourse. Workers who are abused based on their membership in a protected class, including gender, race nationality or religion, among others, can sue under state and federal laws, but the law generally does not cover acts of bullying.
Healthy workplace legislation appears to be gaining traction in the US, however, with bills introduced in 21 States, and 16 bills presently active in 11 states. States which have introduced anti-bullying legislation since 2003 include California, Connecticut, Hawaii, Illinois, Massachusetts, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Vermont, Washington, Wisconsin, and Maryland. Minnesota became the 21st state to introduce a version of the anti-bullying Healthy Workplace Bill when it did so on April 29, 2011.
The proposed laws state that it is unlawful to subject an employee to an abusive work environment, or permit an abusive work environment. Terms defined include adverse conduct, abusive work environment, adverse employment action, malice, constructive discharge, and physical, psychological, and tangible harm. Wrongful conduct primarily must be shown to have been done with malice, and in most cases that has to have been repeated.
None of the bills have been enacted. Yet. However, an online insurance industry newsletter published by PropertyCasualty360.com noted a growing trend in the number of employers requesting that insurance carriers include workplace bullying in their employment practice liability insurance (EPLI) policies.
Management, Prevention, and Costs
Workplaces in which bullying is allowed to occur undermine the pursuit of a business’ growth and profitability and may lead to a detrimental impact on the corporate image with the public at large.
Specifically, the costs of workplace bullying include time and production lost due to factors which include employees’ preoccupation with negative circumstances, and resulting costs to the company’s overhead, loss of skill and experience when a worker leaves due to being bullied, and time spent training his/her replacement, lowered employee morale, medical and insurance costs, provision of counseling services, and harm to a company’s reputation.
Occupational health and safety laws have long dealt with physical risks, and now psychological risks are beginning to be treated similarly. Undertaking risk assessments, implementation of a policy statement against bullying which includes definitions and examples, information dissemination and training to both supervisors and employees, institution of complaint and investigation processes, and follow-up are quickly moving from recommended to required steps for addressing bullying in the workplace.
In today’s workplaces, the approach by management to OHS should emphasize both physical and psychological health.
Human resources professionals, attorneys, and safety mangers, as well as high level management, must be aware of workplace bullying developments. Workplace bullying has been made illegal outside of the United States, in countries where many multinational corporations may do business. Whether or not legislation has been enacted in a country, State, territory, or province, these emerging workplace risks and liabilities should be proactively managed for the best interests of employers and employees.
Ellen Cobb
www.management-issues.com
