What is and what is not bullying in Gibraltar? – Updated employment law. – 25 January 2022.
Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all employment bullying cases on a “no win no fee” basis.
Background
The Court of Appeal for Gibraltar gave their decision in a leading case on bullying in Gibraltar, Mr Stagnetto and (1) Dr Cassaglia (2) Gibraltar Health Authority on 25 January 2022. The case originally began in the Gibraltar Employment Tribunal. Simplifying matters, the claimant alleged that he had been subject to an act of bullying by Dr Cassaglia, the Medical Director of the Gibraltar Health Authority in 2017, which Dr Cassaglia denied. Simply put, the alleged bullying act involved Dr Cassaglia who was alleged to have pushed Mr Stagnetto and where a heated exchange took place as Dr Cassiglia believed he had been blocked from accessing information he was entitled to see as Medical Director. As a result of this alleged act of bullying, the claimant brought a claim against the employer, the Gibraltar Health Authority, under the Employment (Bullying at Work) Act 2014 (the “Bullying Act”). Dr Cassaglia was not a party to the proceedings in the Employment Tribunal but he had given evidence as a witness about the incident but his account was not preferred. At later remedies hearing the claimant, Mr Stagnetto was awarded £7,000 damages plus interest against the Gibraltar Health Authority.
The Gibraltar Health Authority initially lodged an appeal against the Employment Tribunal’s decision but later withdrew it. However, Dr Cassaglia, a non-party to the Employment Tribunal’s proceedings, and who was unhappy with the decision made an application to judicially review the decision of the Employment Tribunal.
At the later judicial review permission hearing in the Supreme Court of Gibraltar, Dr Cassaglia sought to have the decision of the Tribunal quashed principally on the basis that the conduct as found by the Tribunal could not amount to bullying under the Bullying Act, and even if it did, he submitted that the Gibraltar Health Authority was not responsible in law for his conduct. The Employment Tribunal was the respondent and the Gibraltar Health Authority and Mr Stagnetto were interested parties.
The Supreme Court however decided after hearing legal arguments that the route the challenge would take place would be via a statutory appeal in which Dr Cassaglia would be the appellant and the Gibraltar Health Authority and Mr Stagnetto were the respondents. (The issues involved including whether Dr Cassaglia was entitled to appeal at all and the legal arguments deployed at this hearing, the so-called “procedural” issues will be discussed in a later post).
On hearing the appeal at a later date the Supreme Court found that the incident in question could not amount to bullying within the meaning of section 4 of the Bullying Act because it was a single incident. The court also agreed with the argument advanced by the appellant that even if the act did constitute bullying within the meaning of the Bullying Act the Gibraltar Health Authority was not liable in law for such bullying. Mr Stagnetto appealed these decisions to the Court of Appeal for Gibraltar.
Substantive issues for the Court of Appeal of Gibraltar.
(1) was there bullying as per the Bullying Act, and if so
(2) was the employer liable for it?
The answers to these questions are important to understand how the Employment Tribunal will need to deal with future claims for bullying.
The Law – Employment (Bullying at Work) Act 2014
“Meaning of bullying
4.(1) A person (“A”) subjects another person (“B”) to bullying where A engages in conduct which has the purpose or effect of causing B to be alarmed, distressed, humiliated or intimidated.
(2) In subsection (1) the reference to conduct includes-
(a) persistent behaviour which is offensive, intimidating, abusive, malicious or insulting;
(b) persistent unjustified criticism;
(c) punishment imposed without justification;
(d) changes in the duties or responsibilities of B to B’s detriment without reasonable justification.
(3) Bullying does not include reasonable action taken by an employer relating to the management and direction of the employee or the employee’s employment.”
Bullying of employees
6.(1) An employer (A) must not, in relation to employment by A, subject an employee (B) to bullying.
(2)The circumstances in which A is to be treated as having subjected B to bullying under subsection (1) include those where-
(a) a third party bullies B in the course of B’s employment;
and
(b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.
(3) Subsection (2) does not apply unless A knows that B has been bullied in the course of B’s employment on at least two other occasions by a third party, and it does not matter whether the third party is the same or different person on each occasion.
(4) A third party is a person other than-
(a) A; or
(b) an employee of A’s.
(5) An employee will not be in contravention of subsection (1) in relation to a complaint of bullying where he can show-
(a) that at the time of the act or acts complained of-
(i) he had in force a Bullying at Work Policy in accordance with the Schedule; and
(ii) he has taken reasonable steps to implement and enforce the Bullying at Work Policy; and
(b) as soon as reasonably he takes all steps as are reasonably necessary to remedy any loss, damage, or other detriment suffered by the complainant as a result of the act or acts of which he complains.
In the Schedule to the Employment (Bullying at Work) Act, the requirements with regard to the Bullying at Work Policy are stated, that it must be distributed to all employees and which among other things includes the companies statement on bullying, and give examples of bullying that will not be tolerated and of conduct which may lead to disciplinary action, states the nominated persons to report allegations of bullying, requires training for all those in managerial positions on the bullying policy on the operation of the policy and annual monitoring of complaints.
The meaning of bullying
The Court of Appeal of Gibraltar noted that the meaning of bullying under the Act depended upon a proper understanding of the inter-relationship of sections 4(1) and 4(2), and which noted the Court of Appeal was “far from clear”
The Court of Appeal went on to state that the conduct in question must cause alarm, distress, humiliation or intimidation: section 4(1). These would indicate that strong feelings must be involved and the court went on to say that in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] 1 WLR 125, para. 30, Lord Nichols observed when considering the closely related concept of harassment that where the courts are considering whether the quality of conduct truly deserves the epithet “harassment”
“….courts will have in mind that irritation, annoyances, even a measure of upset, arise at all times in everybody’s day-to-day dealings with other people.”
The Court of Appeal of Gibraltar went on to say that
“….a similar approach should be adopted when determining whether the nature and degree of any adverse effect on the victim to alleged bullying is sufficiently grave to merit the description alarm, distress, humiliation or intimidation.” para 54(3) page 22 of the judgment.
Subjective or objective?
Importantly the Court of Appeal stated
“The purpose of the legislation is to provide a remedy for bullying, not for any conduct or action which in fact genuinely causes alarm, distress, humiliation or intimidation…..by conduct far removed from bullying and possibly even entirely innocent……..“
And went on to say
“……..In my view, it is inconceivable that the Parliament could have intended the concept of bullying should be drawn in such a wide and arbitrary way, wholly unrelated to any common understanding of that term (bullying), and indeed catching the wholly innocent.” paragraph 70 of the judgment.
The Court of Appeal rejected the submission that when considering bullying liability could arise by an abnormal response of an overly sensitive employee (a subjective test). The conduct in question must be that when it is objectively viewed it is capable of causing alarm, distress, or feelings of humiliation or intimidation. paragraph 71 of the judgment.
Persistent behaviour
The Court of Appeal also found that if the conduct complained of falls within the scope of sections 4(2)(a) or (b), that is,
(a) persistent behaviour which is offensive, intimidating, abusive, malicious or insulting.
(b) persistent unjustified criticism;”
it must be persistent, and it needs to be repetitive conduct so it cannot be a single incident. They went on to say that there was no basis for concluding (As the Employment Tribunal found) that a distinction can be drawn between serious and less serious conduct. The Court went on to say that it, therefore, follows that the relevant matter under appeal being a one-off incident, therefore, could not amount to bullying under the Act.
The Court of Appeal of Gibraltar further stated,
“I would add that it does not in my view follow that two incidents necessarily create the requisite persistent behaviour. Whilst it may be possible to describe two incidents as persistent conduct, particularly if they are closely connected in time, that will not always be the case. Persistent is defined as “continuing to do something over a prolonged period. Two incidents years apart, for example, may very well not give the sense of continuity necessary to amount to persistent treatment. It is ultimately a matter of fact and degree for the relevant court to determine whether the relevant persistence is present” paragraph 75 of the judgment.
It is submitted however that 4(c) and (d) would not have to be persistent behaviour for the obvious reason that the text of the Bullying Act is stated differently omitting the words persistent.
(a) “punishment imposed without justification;
(b) changes in the duties or responsibilities of B to B’s detriment without reasonable justification.”
The Court of Appeal then made obiter comments as to whether the list in section 4(2) was exhaustive (saying that because they had decided that the single incident, in this case, could not amount to bullying under the Act it did not have to go on to decide this point). These obiter comments by the court will be discussed in a future post.
The court also decided that in this case there was no bullying in law and also did not have to decide the other issue raised in the appeal, that is, whether the GHA was liable for the actions of Dr Casaglia. This will be discussed in a later post as it is of potential importance as to whether an employer is liable under the Act for the actions of his employees.
In summary, the Court of Appeal upheld the Supreme Court’s decision to overturn the Employment Tribunal’s finding that the GHA was liable for bullying as Dr Cassaglia had not as per the Employment (Bullying at Work Act) bullied Mr Stagnetto.
Submissions what is, or is not bullying – The Court of Appeal for Gibraltar’s judgment?
A finding of bullying allegations against an individual is a serious matter and the courts will look at the seriousness of the actions complained of and will apply an objective view, and not a subjective view, as to whether the conduct amounts to bullying.
In addition, the conduct under sections 4(a) and (b) must be persistent and will be decided on the facts depending on the number of events and the time period over which they occurred.
Finally
Sir Patrick Elias JA giving judgment for the Court of Appeal for Gibraltar stated
“It will be obvious from this judgment that I have not found this Act easy to interpret or apply. There is a lack of clarity about fundamental questions such as precisely what amounts to unlawful bullying, and when an employer will be personally liable for the acts of bullying by his employees. Parliament might think it appropriate to amend the legislation to clarify these difficult and important issues.” para 92 of the judgment.
Let’s see what happens!
Finally, is an employer actually liable for acts of their employees which are alleged to be bullying under the Employment (Bullying at Work) Act 2014? – Maybe, possibly not. A further post will discuss this. Follow this Link
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, 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 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/
