As working practices continue to improve and develop, many employers have now implemented an Anti-Bullying Policy to ensure that they have a clear and simple procedure in place to address any grievances made by members of staff, to allow them to deal promptly with such grievances and to address any inappropriate behaviour. This is very important not only from an employee-welfare perspective but also to reduce the risk of legal claims arising under statute (such as the Employment (Bullying at Work) Act 2014 (“Bullying Act”) or contract, including any express or implied duties owed to their employees.
Whilst employers should be commended for implementing an Anti-Bullying Policy, their policies can often be inadequate under the Bullying Act when, for example, they are simply copied and pasted from a general precedent or from another group company’s policy operating in another jurisdiction without full regard to the nuances of Gibraltar law.
Background
Gibraltar was one of the early jurisdictions to provide statutory rights for employees not to be subject to bullying and victimisation at work. In contrast, England and Wales decided against legislating in this area which does not necessarily mean that those employees have no legal rights per se but they must instead rely on existing statutory rights (such as the right not to be unfairly or constructively dismissed or discriminated against under statute), their contractual rights under their employment contracts and/or bring a grievance under their employer’s Investigation and Disciplinary Procedure where bullying would normally constitute misconduct or gross misconduct depending on the particular circumstances of the act complained of. Even where jurisdictions have legislated, there are differences in the law including the interpretation of “bullying” and the remedies available to those individuals who complain about such conduct.
Our Bullying Act has been the subject of criticism by the Court of Appeal for Gibraltar in Lawrence Stagnetto v (1) Dr Daniel Cassaglia and (2) Gibraltar Health Authority 2022/GCA/01 where it commented that the Bullying Act was not easy to interpret or apply with a lack of clarity about fundamental questions such as precisely what amounts to unlawful bullying, and when the employer will be personally liable for the acts of bullying by its employees. It suggested that Parliament might consider it appropriate to amend the legislation to clarify those difficult and important issues with certain amendments subsequently passed by Parliament.
S. 6(5) of the Bullying Act
Whilst there are defences available to employers under the Bullying Act, including that such conduct does not satisfy the definition of bullying, there is an absolute defence for employers under section 6(5) of the Bullying Act which (generally paraphrasing) requires the employer to show that in relation to a bullying complaint:-
(a) It had in force an Anti-Bullying Policy which complies with the conditions set out in Schedule of the Anti-Bullying Act;
(b) It has taken all reasonable steps to implement and enforce the Anti-Bullying Policy; and
(c) As soon as reasonably practicable, it takes all steps as are reasonably necessary to remedy any loss, damage or other detriment suffered by the complainant.
Whilst employers often comply with the requirements of paragraphs (b) and (c) when undertaking their investigations and, if any, disciplinary proceedings then ensue, they may overlook the requirements of paragraphs (a) which requires the Anti-Bullying Policy to comply with all the requirements under the Schedule. These are numerous but include, by way of illustration:-
(a) an explanation of the statutory right of all employees not to be subjected to bullying and victimisation;
(b) designation of a competent person to whom complaints should be made;
(c) details (including names and contact telephone numbers) of designated persons available to counsel, assist and advise individuals bringing complaints or those who are the subject of complaints;
(d) arrangements to train all those occupying any position of managerial authority with the employer in the Anti-Bullying Policy;
(e) annual monitoring of the operation of the Anti-Bullying Policy, to be reported to senior management and to include a summary of all complaints made under the Anti-Bullying Policy (with names of complainants kept confidential unless the complainant agrees); and
(f) arrangements for consultation with trade union, safety representatives and/or other stake holders on the operation of the Anti-Bullying Policy, its implementation and any revision of the Anti-Bullying Policy in the light of its operation in practice.
Whilst satisfying each of those provisions is often regarded as a box ticking-exercise, a general precedent will clearly not meet each of those conditions as, amongst other things, there will be no reference to the statutory rights under the Bullying Act.
Further, as you would expect for investigations generally, any complaint must be investigated objectively and dealt with in confidence, but this, coupled with the other provisions under that Schedule, can result in an employer encountering difficulties if it fails to adequately prepare and plan each time a grievance is raised. For example, an employee complains against another employee to a competent person, with each involving a designated person, with the competent person being the investigator in this instance. That already involves five individuals, and leaving aside any witnesses that may be present, any representatives on behalf of the employee or the person complained against, there will also need to be at least one disciplinary officer(s) if disciplinary action is taken and an appeal officer(s) if the matter proceeds to an appeal. It is therefore necessary to ensure that the individuals are aware of their roles, or possible roles, at the commencement of each complaint to ensure that independence and impartiality is maintained. Unfortunately, those provisions do not differentiate between the size of the employer or the resources available to it, and it does question how a small employer can be expected to satisfy those provisions without it being prohibitively expensive and requiring the engagement of third parties for certain elements. There are no exemptions to these provisions, and that is an area that may be the subject of future legislation to balance the requirements and needs of small businesses in Gibraltar whilst still ensuring fairness and independence under the Anti-Bullying Policy.
Even if the Anti-Bullying Policy does comply with the provisions of the Bullying Act at the outset, employers may fail to comply with the on-going requirements by not having procedures in place to ensure, for example, that the Policy is circulated to new employees, that new persons under the Anti-Bullying Policy receive training, that annual monitoring is undertaken in compliance with that schedule and that consultations are arranged with certain stakeholders particularly when the Anti-Bullying Policy is reviewed from time to time.
Next steps
Even the largest employers in regulated and non-regulated entities for local and international companies in Gibraltar should regularly review their Anti-Bullying Policies and seek legal assistance in drafting or reviewing such Anti-Bullying Policies, including ensuring the provision of training for those occupying managerial positions under them and ensuring that they continue to comply with the ongoing provisions under that Schedule such as annual monitoring and consulting certain stakeholders when reviewing their Anti-Bullying Policies.
