Following the Court of Appeal for Gibraltar’s decision in Lawrence Stagnetto v (1) Dr Cassaglia (2) Gibraltar Health Authority, it has been reported today, 18 February 2022, that the Government of Gibraltar is proposing to amend the Employment (Bullying at Work) 2014 Act, to remedy the difficulties that the Court of Appeal highlighted in their judgment of the case.
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.
A Bill is currently passing through the Gibraltar Parliament, to be voted on, which I will discuss below. In particular, I will highlight the proposed changes to existing legislation in the Gibraltar Employment (Bullying at Work) Act 2014 and will explain what this will mean for employers and employees alike.
The Bill which will need the approval of the Gibraltar Parliament to become law (which is in my opinion likely), is the Employment (Bullying at Work) (Amendment) Bill 2022.
Bullying Act – Proposed Amendment 1
In the amended section 4 of the Employment (Bullying at Work) Act 2014 the legislation will read;
(2) “In subsection (1) the reference to conduct means-“
Note, that the word “means” replaces the word “includes“
There have been legal arguments by employment lawyers in Gibraltar as to whether the examples of bullying, as contained in section 4 of the Bullying Act, were an exhaustive list, or whether it was non-exhaustive in which other examples of bullying could be included.
It is submitted that this amendment will demonstrate that it is the intention of the drafters of the proposed legislation to clarify that the list of bullying examples contained in subsection 4(2)(a)-(d) is an exhaustive list, (see below)
If it passes through Parliament the new legislation will read-
Subsection 4(2) – “In subsection (1) the reference to conduct means-
(a) persistent behaviour which is offensive, intimidating, abusive, malicious or insulting;
(b) persistent unjustified criticism;
(c) punishment imposed without justification;
(d) changes in duties or responsibilities of B to B’s detriment without reasonable justification.“
Bullying Act- Proposed Amendment 2
There will be a new subsection 4(2A) inserted after subsection 4(2) which would read-
“For the purpose of subsection 4(2)(b), (c) and (d) the conduct in question must include behaviour which is offensive, intimidating, abusive, malicious or insulting.”
You will notice that new subsection 4(2A) would replicate the description of behaviour stated in 4(2)(a), and which, it is submitted, demonstrates that it is the intention of the legislative drafters to require the bullying conduct identified in the Bullying Act to be more than nominal actions which presently attach to the descriptions in subsection 4(2)(b)-(d). This proposed change to legislation reinforces the requirement of the seriousness of the actions considered objectively which would have to attach to the act of a ‘bully’ to merit the description of bullying behaviour under the Gibraltar Bullying Act.
It is submitted that while subsection 4(2) (a) and (b) of the Bullying Act have to be persistent, conduct in (c) and (d) does not have to be. See my earlier post for a discussion on persistence here.
Bullying Act- Proposed Amendment 3
The Court of Appeal for Gibraltar had identified in Lawrence Stagnetto v (1) Dr Cassaglia (2) Gibraltar Health Authority that as the law currently stood the Employment (Bullying at Work) Act 2014 did not allow, in the case under appeal, (and it submitted generally speaking in most cases) for the acts of the bullying employee to be attributed to the employer, and which I also discussed in a previous post.
Parliament will remedy the lacuna in the legislation by the addition of a new subsection 7A which will be inserted after subsection 7 of the Employment (Bullying at Work) Act and which will read.
“Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval”
Summary
If, as expected, the Bill becomes law it will (at the time it is published) come into effect. Going forward it will mean that all new cases of alleged bullying in the workplace will be interpreted under the newly amended law. It is submitted therefore that the changes to the legislation along with the judgment of the Court of Appeal for Gibraltar will mean-
(1) While the complainant in a bullying case has to subjectively feel the emotions set out in subsection 4(1) of the Employment (Bullying at Work) Act 2014, that is one of alarm, and/or distress, and/or humiliation, and/or intimidation (if “effect” is being alleged, as is most common – Compare the more difficult to prove “purpose”) The Employment Tribunal will also consider whether objectively the bullying act complained of by reference to subsections 4(2)(a)-(d), is serious enough to rightly warrant the description of bullying behaviour.
(2)The list of examples of bullying conduct in subsection 4(2)(a)-(d) of the Employment (Bullying at Work) Act 2014 will be an exhaustive list.
(3) For conduct to amount to bullying under subsection 4(2)(a) and (b) it has to be persistent, though (c) and (d) need not be.
(3) An employer can be responsible for the acts of the employee.
Watch out for a later post which will confirm whether or not the Bullying Bill passes through Parliament unamended.
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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