Is an employer actually liable under the Gibraltar Bullying Act for an employee’s bullying behaviour? – Updated employment law – 25 January 2022.
Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all bullying employment cases on a “no win no fee” basis.
This blog post follows on from my earlier discussion, read here “Employment Law Update – Latest, What is, and What is not Bullying.” in Gibraltar employment law
Following the recent judgment of the Court of Appeal for Gibraltar. It deals with, in my submission, a vital ingredient in any claim for bullying. My previous post discussed the Court of Appeal’ for Gibraltar’s decision in Mr Stagnetto v (1) Dr Cassaglia (2) The Gibraltar Health Authority that any claim for bullying had not only to cause the victim to feel alarmed, distressed, humiliated or intimidated (a subjective test to be decided by the court), but that the action by the perpetrator also had to be a recognisable act which, on an objective view, would be serious enough to be rightly construed as a bullying act.
As the Court of Appeal for Gibraltar found in the circumstances of the case, Mr Stagnetto v (1) Dr Casagglia (2)The Gibraltar Health Authority, the acts complained of did not amount to bullying under the law, not least because by virtue of section 4(2)(a) of the Employment (Bullying at Work) Act 2014 it had to be persistent, which in this case it was not. What might be described as “persistent conduct” under the Bullying Act was discussed in my previous post.
As the Court of Appeal found that bullying on the matters above was not made out in law, it did not have to decide the issue raised as to whether or not the GHA was responsible for the acts of Dr Cassaglia? However, the court decided that such an important issue and which was raised by the Respondents should be addressed by the court. Therefore, the court examined whether, under the Employment (Bullying at Work) Act 2014, an employer was liable for the acts of its employees.
In dealing with this legal issue the Court of Appeal for Gibraltar made the observation that an employer can either be vicariously liable for the wrongdoing of his employee, or he can be personally liable for his own wrongdoing. In this instant, the court found that the GHA could not have been vicariously liable for the act of bullying by an employee in the circumstances of the case.
The Court of Appeal for Gibraltar emphasised that vicarious liability is a secondary liability and not a primary liability; it can only arise when the employee has primary liability for the alleged wrongdoing. The court went on to explain that since the employee is not personally liable in law for the act of bullying, the doctrine of vicarious liability does not arise. Sir Patrick Elias, JA, giving judgment for the Court of Appeal went on to explain that Lord Nichols in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] 3 WLR 125, paras 7 and 9-10 reinforced the common law rule stating:
“Vicarious liability is a common law principle of strict, no-fault, liability. Under this principle, a blameless employer is liable for a wrong committed by his employee while the latter is about his employer’s business. The time-honoured phrase is “while acting in the course of his employment” It is thus a form of secondary liability. The primary liability is that of the employee who committed the wrong…..”
While a Gibraltar employer is responsible for the torts (or wrongdoing) of his employee when acting in the course of his employment, it is the case that if the employee has not committed a tort, an unlawful wrong (or a statutory unlawful act) in any alleged bullying act, then the employer cannot be responsible for the act which itself is not unlawful as far as the employee is concerned.
Lord Nichols in para 15 of Majrowski went on to reject an explanation for vicarious liability which claimed that the employer is liable for what an employee had done rather than because the employee had committed a wrong. It is settled law that the principle is the employer is liable for the employee’s wrongs so that the employee’s wrong is imputed to the employer.
The Gibraltar Bullying Act of course imposes legal liability on the employer (See section 6 of the Act) but there is no separate liability imposed by statute or common law on the employee who actually commits the act of bullying. The Court of Appeal for Gibraltar, however, went on to make the observation that the employee may be liable for an act committed in the course of bullying, such as an assault (which is an unlawful act which imposes a liability on the employee) in which case the employer could be then vicariously liable.
Submissions from the Appellant made the submission that it would materially narrow the protection that the Gibraltar Parliament intended to afford employees when enacting the Employment (Bullying at Work) Act. If the employer was not actually vicariously liable for the acts of their employees, then the employer must be personally liable for their acts of bullying. The court disagreed with this submission while noting that statute can and sometimes does specifically impose personal liability on the employer for the acts of its employees, which it does by deeming the acts of the employees as the acts of the employer, it further stressed that deemed personal liability should not be confused with vicarious liability.
The Court of Appeal for Gibraltar when delivering their judgment on this point had referenced the English case of NHS Manchester v Fecitt [2012] ICR 372, a case in which the employer under legislation in force at the time of the claim, was liable for taking detrimental action against whistleblowers. But, as in Gibraltar’s Employment (Bullying at Work) Act, there was no parallel liability imposed on their employees who might act in such a way, and because the detrimental action against whistle-blowers was taken by fellow employees, the court in Fecitt held that following Majrowski the employer could not be vicariously liable for the acts in question.
Following Fecitt the legislation in England was thereafter amended to make the employer liable in two ways:
- Liability was imposed on the employee for such acts (subject to a limited defence) so that the doctrine of vicarious liability was engaged.
- It was expressly provided that the acts of fellow employees were to be treated as the acts of the employer, this created a deemed personal liability.
See Employment Rights Act 1996 section 47 B(IA) and 47 B(IB)
With respect to the case under appeal, the Court of Appeal of Gibraltar noted that there was no such express provision in the Employment (Bullying at Work) Act 2014 and contrasted this with the approach which had been adopted by the Gibraltar Parliament when enacting the Equal Opportunities Act 2006, and which makes it unlawful to discriminate or victimise on a wide variety of grounds and which, at section 47(1) states,
“Anything done by a person in the course of his employment shall be treated for the purposes of this Act as having been done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”
The Court of Appeal noted that as no express term in the Bullying Act attributed the acts of the employee to the employer, then for the principle to be adopted the term would have to be implied. The court was of the view that taking account of Parliament’s clear decision to expressly state the term as in section 47 of Gibraltar’s Equal Opportunities Act then it would be a difficult argument to advance that it should be implied into the Bullying Act.
Dealing with the Applicant’s earlier submission that the Bullying Act would be rendered practically useless if the acts of the employees could not be attributed to the employer the court rejected that argument stating that it was “well established that the employer, if a corporate body, can in appropriate cases be liable in law for the conduct of their any employee whose acts or state of mind can properly be attributed to the employer.” Sir Patrick Elias JA, giving the judgment for the Court of Appeal of Gibraltar, referred to the decision of the Privy Council in Meridian Global Funds Asia Ltd v Securities Commission [1995] UKPC 5 on this point, and followed up by stating, obiter, that the Meridian principles would “in many circumstances at least mean that any supervisor bullying a subordinate would be treated as the act of the employer who had, by appointing him to a disciplinary role, conferred the authority to discipline upon him.”
The Court of Appeal for Gibraltar went on to say that, by way of an example, any act that fell within the scope of subsections 4(2)(c) and (d) of the Bullying Act, that is ‘unjustified punishment’ or ‘unjustified changes in the employee’s terms and conditions would inevitably be seen as acts of the employer in which case there was no reason why (at least in many situations) it could not be attributed to the employer, that is where the bullying act was carried out by management at any level.
Sir Patrick Elias, JA, held back from deciding the issue as to whether the acts of the employee could be attributed to the employer stating:
“However, although there are powerful arguments against implying a statutory personal liability for the acts of all employees whether or not their actions would be attributed to the employer on established Meridian principles, I am unwilling to reach a concluded view on this issue. We heard virtually no argument on the question and there may be factors pointing in favour of such implication. I note for example, that section 6(2) (of the Bullying Act) provides the circumstances when the employer will be treated as having subjected his employers to bullying includes actions by third parties. This seems to suggest that the Act envisages other circumstances when such ‘deeming’ occurs and they would naturally be where the act is committed by an employee.” Para 89 of the judgment.
In summary – The author submits the following points that can be taken from the Court of Appeal for Gibraltar’s Judgment in this case:
- Under the Employment (Bullying at Work) Act 2014, an employer is not generally speaking liable for the acts of his employees as the law currently stands. (But they might be if there was an implied term that the acts of the employees are to be attributed to the employer). Also, the employer could be held liable if the act complained of (and perpetrated by an employee) could be attributed to the employer, for instance by a manager acting on behalf of the employer.
- This is because there is no express provision in the Bullying Act which imposes separate liability on the employee.
- Therefore, as the Bullying Act does not make it unlawful for an employee to ‘bully’ a fellow employee, the employer cannot be liable for the acts of the employee which are not unlawful. This is to be contrasted to situations in which an offending employee commits a wrong, either a tort or in breach of a statute, in which case the employer would then be exposed to liability as long as the unlawful act complained of was undertaken in the course of their employment, under the doctrine of vicarious liability.
- There is no express statutory provision in the Bullying Act that allows for acts of a fellow worker to be treated as acts of the employer, which would create personal liability on the employer.
- Particularly, sections 4(2)(c) and (d) of the Bullying Act, that is ‘unjustified punishment’ and ‘unjustified change of terms and conditions, might allow bullying behaviour in certain circumstances to be attributed to the employer on the Meridian Principle?
- However, the Court of Appeal left the door open on the question of whether personal liability on the employer is implied in the Bullying Act. This will need to be argued by Claimants in later cases.
Finally, the Court of Appeal for Gibraltar acknowledged that the Bullying Act is not easy to interpret or apply noting in paragraph 93 of the judgment.
“There is a lack of clarity about fundamental questions such as what amounts to unlawful bullying, and when the employer will be personally liable for the acts of bullying by his employees,
Adding,
“Parliament might think it appropriate to amend the legislation to clarify these difficult and important issues.”
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.
Are you an employer looking to defend, or perhaps reduce your exposure to a claim for bullying? Or perhaps you are an employee who you feel is being bullied? Please contact me at Phillips Barristers and Solicitors at 292 Main Street, Gibraltar. Telephone (+350) 200 73900, or email me at chris.brunt@phillips.gi for an informal discussion to see how I can assist you.
All employee cases are considered on a “No Win No Fee” basis
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/
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