HL Deb 04 December 1996 vol 576 cc754-74

8.45 p.m.

Lord Monkswell

My Lords, I beg to move that this Bill be now read a second time.

The Dignity at Work Bill is to counteract bullying at work. My aim in opening the debate is to explain the background to the Bill, the reasons for it, how it came to be formulated and to explain what it does and how it is envisaged it will work. But before I do that I would like to put on record the tribute we all owe to the late Andrea Adams, who was a key player in raising the public profile of the scourge of bullying at work.

The Bill is the workplace equivalent of the anti-stalking Bill which the Government are to bring in later this year. My involvement started earlier this year. My union, MSF, has been concerned for some time about bullying at work. I was prevailed upon to convene a meeting in the House of Lords on the subject and was amazed at the response. I arrived for the meeting to find all the seats taken and some people still standing. We had to bring in extra seats and I was lucky to commandeer one to enable me to chair the meeting.

At the meeting we had a wide range of people. We had victims of bullying at work, with some of the most harrowing tales you could ever hear. We had counsellors, people who are involved in helping to alleviate some of the psychological traumas that afflict the victims. We had people involved in training provision, providing services to victims, employees and employers on the subject of bullying at work and prevention strategies. We had academics in the field of psychology and social sciences with knowledge of the subject, and we had representatives of staff associations and trade unions with experience of the problem.

Out of that meeting was born the Campaign Against Bullying at Work and I have to declare a non-pecuniary interest as the chairman of the campaign. Here I would also like to pay tribute to Chris Ball, the voluntary sector secretary of MSF, and Roger Lyons, the General Secretary of MSF, for their support and assistance in the campaign.

From my experience with those involved in the campaign it would be very easy to provide a long catalogue of examples. However, I fear that even if I were to try to disguise the identity of those involved there are risks of intrusion by tabloid journalists into victims' lives which would do them no good. I shall, however, give the House one example of a man who worked successfully for 15 years and then experienced 18 months of workplace bullying and suffered a nervous breakdown. His name is Tim Field and I can quote his case because he has made a full recovery and is now involved in helping and counselling others who have suffered bullying at work.

From that example we can see that it can cause grave psychological damage to the individual. I would stress that it can result in a significant loss in company productivity, so employers also have a right to be concerned. It can also result in the inability of the victim to work and the need for medical treatment for the victim, both of which will result in a drain on the public purse, something I am sure will be of interest to the Government.

One of the questions your Lordships will no doubt ask is: what is the incidence of bullying at work? Anecdotal evidence suggests that it is fairly widespread and a growing problem. We also have the results of surveys. The University of Stafford surveyed more than 1,000 people, of whom 51 per cent. had experience of bullying at work. My own union, MSF, surveyed 396 workplace representatives covering 140,000 people: 30 per cent. said that bullying was a significant problem. Only last week the Institute of Personnel and Development published the results of a survey conducted by the Harris Research Centre of just over 1,000 workers in the United Kingdom. That reported that one in eight people have been bullied at work in the last five years. We also learned early on of the good work done by staff associations and unions, working with company management to develop policies and practices to combat bullying at work.

Here I could again quote examples of good practice negotiated by my own union, MSF, with employers. However, to avoid any charge of vested interest I will quote the example of the Yorkshire Independent Staff Association which, having had to deal with a case of bullying at work and following consultation with its members and negotiation with management, now has a formal company policy on harassment and bullying at work.

It also became apparent that these good practices needed statutory reinforcement and that parliamentary action is needed. I pay tribute to the union solicitors who have drafted this Dignity at Work Bill. It is born out of the twin experiences of the race and sex discrimination legislation and also out of the experience of lawyers and union officials in trying to get legal redress for employees who have suffered bullying at work. I would also like to thank the Clerks—the "civil servants"—of the House of Lords, who have also contributed to the Bill's current formulation.

I now turn to the Bill itself. Clause 1(1) confers the right to dignity at work on all employees. Clause 1(2) defines a breach of the right of dignity at work as any of the following: persistent or recurrent behaviour which is offensive, abusive or demeaning; verbal or physical intimidation; persistent or recurrent behaviour which is malicious or insulting; penal sanctions imposed without reasonable justification; or changes in duties or responsibilities to the employee's detriment and without reasonable justification.

Clause 2 confers protection on an employee if the employee brings proceedings under the Act or is involved with proceedings by way of giving evidence or is suspected of giving evidence. Clause 3 confers dignity at work rights to contract workers. Clause 4 enables complaints by employees about breaches of the Act to be presented to industrial tribunals. Clause 5 provides for an employer to have a defence against claims of breach of the right to dignity at work if the employer has a policy, and has implemented the policy as outlined in Schedule 1 of the Dignity at Work Bill, and has repudiated any acts complained of and taken all steps as are reasonably necessary to remedy any loss, damage or detriment suffered by the complainant. Clause 6 provides that an industrial tribunal shall, if the case is proved, require the respondent to pay compensation to the complainant and recommend that the respondent take action to obviate or reduce the adverse effect of any breach of the right to dignity at work. Clauses 7, 8 and 9 are supplementary and relate to interpretation, the Short Title and commencement, which shall be two months after the Bill is passed. Schedule 1 details arrangements for the dignity at work policy, and Schedule 2 details the consequential amendments to the Employment Rights Act 1996 and the Industrial Tribunal Act 1996.

The object of the Bill is to enshrine good practice in law. The aim is to try to prevent bullying at work from taking place and, if it does take place, to provide redress for the victims, either through the actions of their good employer under the dignity at work policy or by recourse to an industrial tribunal where a bad employer either has no policy or is not prepared to implement properly such a policy. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Monkswell.)

8.55 p.m.

Baroness Gould of Potternewton

My Lords, bullying, harassment and victimisation can take many forms. The list is endless but typically consists of unfair and excessive criticism, publicly insulting the victim, ignoring the victim's point of view, constantly changing or setting unrealistic work targets, withholding information in order to embarrass, undervaluing efforts, shouting and abusive behaviour. All of these this important Bill is attempting to eradicate.

While we have protection against sexual or racial harassment, there are many people who have no such protection because they fall into a gap in legislation to cover people who have complaints of this form of bullying. My noble friend referred to the findings of the Institute of Personnel and Development whose report was published last week showing that one in eight people have been bullied at work in the last five years. The report went on to say that over half of those who have experienced bullying say that it is commonplace in their organisations, and a quarter say that it has got worse in the last year.

If that is the case we need perhaps to investigate why that might be. Increased pressure on staff and managers to meet targets, especially unofficial targets, creates an environment in which intimidation and victimisation are almost unavoidable. While a tough, competitive environment does not create bullies it can certainly aggravate their behaviour. It can also create job insecurity, organisational change and uncertainty, poor working relationships generally and excessive workloads. Unfortunately, harassment and bullying can be seen as strong management, the effective way of getting the job done.

Such action by senior managers can be seen as a green light to others to behave in a similar fashion but, as my noble friend said, this can seriously backfire on employers. Staff working in an atmosphere of fear and resentment do not perform well, with the resultant reduction in productivity. Morale levels fall while absenteeism through sickness increases and staff resign. All these things result in significant losses in both human and financial resources, costing industry billions of pounds a year in lost labour. It is estimated that 40 million working days are lost each year because of bullying at work; more than 160 times the number of days lost through strikes.

However, it has to be the impact of this conduct on the recipient and not the intent of the alleged harasser that determines acceptable or unacceptable behaviour. The impact can be devastating. People who are constantly bullied or harassed lose their self-confidence. Their self-esteem is lowered and their health is damaged. Workplace bullying can lead to sleeplessness, migraine, back pains, panic attacks and stress-related illnesses such as depression and anxiety. Nearly three-quarters (72 per cent.) of victims of bullying, according to the IPD survey, say that they have suffered from work-related stress in the last five years. This is borne out by the findings of Professor Carey Cooper of UMIST, a leading expert on stress, and also by the Health and Safety Executive in its published guidance for employers on preventing stress at work. This makes clear that bullying can be a cause of the problem and that preventive measures must include action to eliminate bullying wherever it exists.

The biggest ever survey of workplace union safety representatives carried out by the TUC showed that occupational stress is the major health and safety issue in the workplace, with bullying estimated as accounting for 14 per cent. of stress-related conditions. In spite of this, bullying at work is still a largely unrecognised problem. It is regarded as something that happens in the school playground. In the work environment it can too often be seen just as a personality clash. Verbal threats can be dismissed as unimportant and people who complain can be seen as weak or as troublemakers.

The IPD survey shows that one-third of victims did not raise the problems with anyone at work. They were afraid that they would not be believed and that it would worsen their position; for some men, it did not fit the macho image. And where aggressive management is part of the organisational culture people are unwilling to challenge individual bullying behaviour.

The whole question of victimisation at work is increasingly being seen as an important issue throughout Europe. For example, Norway recently improved its Work Environment Act to provide protection for employees. In Finland a study by the Finnish Institute of Occupational Health's department of psychology concluded that psychological terror at work is most conspicuous at workplaces that are characterised by competition and unequal treatment of workers. In Germany, a campaign, Psycho-Terror at the Workplace, has been active for some time and is growing. In Sweden, a new legal provision, which came into force in 1994, outlaws offensive discrimination at work. It makes clear that bullying is an organisational issue and that employers have a duty to provide a working environment which will actively discourage bullying.

In this country, as my noble friend has illustrated, concern is growing. The number of complaints being pursued is also growing. Trade unions have successfully challenged workplace bullies through workplace grievance and disciplinary procedures, industrial action, tribunals and the courts—a move which has focused the minds of employers' liability insurers and employers themselves. But because these existing legal remedies are not specifically designed to deal with harassment and bullying, the position is far from satisfactory.

Currently, employers have a legal responsibility under Section 2(1) of the Health and Safety at Work etc. Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes protecting their mental as well as their physical health. While the Act does not specifically mention the psychological symptoms of bullying, recent cases have established that an employer may be held liable for damages for psychological injury and stress-related illnesses suffered by employees as a result of their work environment.

Trade unions have for some considerable time been encouraging employers to adopt anti-bullying policies. But a survey carried out by MSF shows that only 28 per cent. of employers have an official policy. Within that 28 per cent. there are, however, examples of good practice. For example, two very differing organisations, the Consumers Association and the Littlewoods Organisation Ltd., have both introduced a code of practice on the protection of dignity of women and men at work, designed to promote a healthy working environment where all employees are given the dignity and respect to which they are entitled, free from bullying and intimidatory behaviour. The aim is prevention, by promoting awareness among staff on the definition of bullying, through leaflets, dignity at work policy statements and briefings at induction courses. They do, however, recognise that this is not sufficient and have established both formal and informal procedures to deal with situations where the policy may have been infringed, including training staff to act as counsellors who can advise anyone who feels that they have a complaint.

If more employers took a responsible stance, this legislation might not be necessary, but, unfortunately, that is not the case. Legislation is necessary for the 72 per cent. of employers who have no official policy for tackling this serious problem. I hope, therefore, that we will hear from the noble Lord the Minister that the Government will respond favourably to this Bill and assist its passage through the House.

9.3 p.m.

Lord Rea

My Lords, the House should be grateful to my noble friend for introducing this Bill. I believe that he and my noble friend Lady Gould of Potternewton have demonstrated that unacceptable behaviour towards employees at work takes place on a wide scale. He and my noble friend Lady Gould argued persuasively that legislation is now overdue and necessary.

However, we know that Private Members' Bills, especially those starting in your Lordships' House, do not often get on to the statute book unless they have government approval or, at least, government neutrality. I know that from my own experience six years' ago with the Junior Doctors (Hours of Work) Bill, which passed all its stages in this House only to be killed by the single word "object" by a government whip in another place. The Opposition can do that too even to Bills which have government approval, as happened to the Commonwealth Development Corporation Bill of the noble Lord, Lord Trefgarne, last year.

But my Bill on junior doctors' hours served a useful purpose. It put the subject on the political agenda and was the centrepiece, for a while, for a campaign which went on to achieve a change for the better, although of course the basic problem is still with us and will be until the number of consultants and trainee posts in hospitals are increased and more routine work is done by nurses and other staff rather than by junior doctors. But I digress.

This Bill opens the batting, as it were, on an important subject. I do not need to remind noble Lords that all anti-discrimination legislation, which is now in place, was preceded by many failed attempts to get legislation through. But the legislation eventually got on to the statute book, usually not in as strong a form as some advocates would have liked, but nevertheless it is in position as a basis for legal action when abuses take place. There is no doubt that sex and racial discrimination has diminished greatly because the legislation exists.

The kinds of behaviour outlined in the Bill, which will become offences, are found at all levels of work other than perhaps at senior management level although even there people higher than them can sometimes cause trouble. The recent report quoted by my noble friend Lady Gould certainly shows that middle managers are not exempt. In one sense perhaps they are doubly vulnerable to abuse from above, which is often expressed in very subtle ways, and ridicule or loss of loyalty from those below. Case histories are available which show how mental breakdown can occur in these circumstances.

However, middle managers may well express their anger that should be directed at their superiors, by making life difficult for those that they in turn manage. In a well-managed organisation it should be possible for any employee who feels aggrieved to take up the problem with their line manager and face them with it; in many good firms there are grievance procedures in place. However, we all know how difficult that can be. Many employees fear that the response may be that "if they don't like it, they can lump it or leave". With high unemployment, an employee may feel that he or she has no alternative but to stay and put up with unacceptable behaviour on the part of his or her boss or line manager. If legislation were in place such behaviour would be an offence and would be curbed. Some power would be given back to the aggrieved person.

Although there has been recent interest in the problem of bullying, particularly of middle managers, it is the lowest grades that are likely to be the recipients of dissatisfaction passed down the chain. At that level there is little control over how tasks are to be done. In badly managed organisations the least skilled workers are the ones who are likely to be treated with the least dignity—or the most indignity. They are also in a vulnerable position because they are the least likely to be able to obtain alternative employment.

A number of recent epidemiological studies have looked at the reasons why health status decreases directly in line with decreasing occupational status. The most detailed work—the Whitehall II Study—focuses on 12,000 civil servants. It is easy to divide civil servants according to their employment grade from permanent secretary down through 13 grades to clerical assistants, messengers and porters. There is a steady rise in mortality rates and sickness absence as one descends through the grades. Professor Michael Marmot of University College London who directs the research grouped civil servants into six categories. He found that known risk factors for coronary heart disease, including for example cholesterol, smoking, exercise and diet, accounted for only about one-third of the social gradient in mortality, leaving a persistent gradient in which the experience of work itself might well play a significant role.

The study also showed that high demand in the work role was not associated with increased sickness absence of the employee if he or she had a high degree of control over the task involved. However, if the subject felt that he or she had low control over the task involved, a high workload or demand led to higher sickness absence. If one has no control over what is coming at you, inevitably stress rises. If one has control high demand and corresponding creative achievement can be health enhancing. That appears to be so in the higher grades of the Civil Service.

Members of Professor Marmot's team, particularly Dr. Eric Brunner, are working on the physical and biochemical mechanisms through which such stress can lead to ill-health; for example, coronary heart disease. If work status can itself be important in determining health through a stress mechanism, factors that increase stress such as those referred to in the Bill, for example abusive behaviour or changes in duty without justification, are highly likely to cause a further deterioration in health.

Understanding of human health is often enhanced by observing animal behaviour. Two American biologists, Drs. Sapolski and Mott, observed a free living troupe of baboons in East Africa and classified them into dominant and subordinate groups. Coronary heart disease risk factors found in blood taken from representative samples of each group (after they had been immobilised with anaesthetic darts) showed that the dominant group had a significantly better coronary risk lipid profile than the subordinate group—precisely reflecting the findings of the Whitehall study of civil servants. Dr. Brunner writes: The violence involved in the production and maintenance of the baboon hierarchy suggests that the human primate would be well advised to take this animal model, if anything, as a cautionary tale". We are not discussing crude physical violence in this Bill—I believe that is covered by existing legislation—but more subtle long-lasting verbal or psychological aggression. Other evidence exists to show that prolonged low grade stress has biochemical effects which are associated with ill health. I hope that these remarks will help to convince the noble Lord, Lord Lucas, and other noble Lords that this Bill is a serious and necessary measure, if the right form of words can be found, that will assist in encouraging good employment practice in Britain. To echo the words of the noble Baroness, there is a possibility of creating a virtuous circle: better working conditions may lead to better health of employees, which in turn may lead to better productivity which, spread across the whole economy, will lead to greater output. That could lead to more primary wealth creation benefiting the health and well being of the whole population.

I should like to close by quoting the words of John Ruskin more than 100 years ago: It may be proved, with much certainty that God intends no man to live in this world without working which may suggest that the Government have not always been very godly. I continue: but it seems to me no less evident that he intends every man to be happy in his work. It is written 'in the sweat of thy brow', but it was never written 'in the breaking of thy heart"'.

9.15 p.m.

Lord Haskel

My Lords, I congratulate my noble friend Lord Monkswell on his initiative on this Bill, but I must confess that I approach the Bill with mixed feelings. That is because I am reluctant to impose more regulations on business and industry, and I am sure that is what the Minister will tell us. I am sure that he will also tell us that some of the rights in the Bill are already included in any reasonable contract of employment. For instance, most contracts of employment include a clause about fair treatment. They include a complaints procedure. They include a clause about changes in duties and responsibilities.

In addition, as other noble Lords have said, most employers realise that bullying at work is counterproductive. It is not good for business. As my noble friend Lord Monkswell told us, it causes absenteeism and ill health; it causes people to be less productive, and to concentrate less and make more mistakes.

Yet, bullying does go on, as we have heard from the surveys about which noble Lords have told us, even though, with flatter management structures and more open management styles, there is less need today for people to put up with that. After all, one can now e-mail the chairman from the shop floor, and no one will know about it. However, it is difficult to draw the line, because some managers think that creative tension is necessary for people to perform at their best.

So bullying does go on. Not only is there actual or threatened physical violence, there is also the mental violence caused by shouting or abusive or threatening behaviour. Noble Lords have catalogued the methods by which people are manipulated—excessive criticism or humiliation, hectoring them in a manner that can lead to a nervous breakdown, harassed until they leave, and unachievable work targets, and that happens at all levels. Of course it is not right that it should happen, but there is no doubt that it does.

There may be more going on now as work becomes more pressured with increased competition. Also, people will put up with more abuse to retain their jobs as work is scarce. As my noble friend Lady Gould told us, we are all familiar with the harassed manager being told by his boss to, "get it done and I don't care how". So he or she in turn pressures the staff.

Years ago it was necessary to introduce health and safety legislation to provide physical protection for people at work. It has been effective. A health and safety culture has been created within which most of industry works. Perhaps that can show us the way to a kind of mental version of that culture.

There are things that we can learn from the way the Health and Safety at Work etc. Act 1974 works. The Health and Safety Executive does not seek compliance only by threatening court action. That is a last resort. It seeks compliance with the regulations by inspections, but also by organising seminars, workshops, and publicity campaigns designed to inform employers of the regulations, and to persuade them that it is good for their business. Also the earliest health and safety regulations were very prescriptive; for example, laying down temperatures at which people could work and weights which they could lift.

My noble friend Lady Gould mentioned the 1974 Act. That Act introduced the concept of reasonable practicability. As a result, many firms have a written health and safety policy which defines the "reasonable practicability" of their particular business. That is part of the agreement between employer and employee. Some of those policy statements also deal with stress, long working hours, working at night, and action to be taken in the event of fatigue. That approaches a dignity at work concept. After all, every employer has a duty of care to their employees, and every employee has a duty of care to their employer. It is useful to have a policy statement defining those duties.

However, nowadays people seem to want more from work than just employment. They seek dignity and respect, and courses are now appearing at management schools—particularly for middle management—on how this respect and dignity can be earned and how it can be given. Cranfield University School of Management makes a particular effort in trying to give managers an insight into their own and their staff's psychology in order to achieve this. Counselling and therapy are also offered. Equally, victims can go to a voluntary management committee created specifically for this purpose—that is if they can be encouraged to do so.

However, all this is fine for the majority of people who are reasonable employers and employees. But there is always the unreasonable employer and employee. There is always the unreasonable person who will bully mentally and physically. Now that we are more aware of these dangers it must be right for these innocent victims to have the protection of the industrial tribunal and the law. At the same time, every effort should be made to see that the tribunal is the last resort. I agree with other noble Lords that it is far more constructive to introduce good practice and awareness of the damage that can be done by bullying than to go to law. Now that we have become aware of mental health and safety there is a need for a mental health and safety Act. That is what this Bill tries to cover. Therefore, I support it and in doing so I quote from the Charter of the World Health Organisation. It states: A state of complete physical, mental and social wellbeing does not consist only of the absence of illness or infirmity".

9.21 p.m.

Lord McCarthy

My Lords, we have had an excellent short, if somewhat one-sided, debate. I wish to do three things. First, to congratulate the noble Lord, Lord Monkswell, on raising the subject. I believe that we shall hear a great deal more of it. As the noble Lord, Lord Rea, said, he has opened the batting. It is an excellent subject for a Private Member's Bill and we hope it makes some progress in both Houses.

Secondly, I wish to comment on the arguments relating to the need for the Bill and the current legislation. The Minister may be going to say—and if he does not it will be because I said that he will—that we already have legislation which admirably covers the area of the Bill. Comments have been made about that by Members on this side of the House and I wish to say a little more.

Thirdly, I wish to examine the Bill and say why I believe that some parts can be changed to the improvement of its objectives. I also wish to comment on some of the difficulties which would arise if we passed the Bill as it stands. Of course, there is no reason to suppose that we shall do so.

As the noble Lord, Lord Monkswell, rightly said, bullying at work is a growing problem. We have heard various surveys quoted by various speakers. Notably, and perhaps the most reliable and most worrying, there is the recent survey of the IPD.

The noble Lord, Lord Monkswell, and others, have made clear, as has the IPD survey, that when we talk about bullying at work and when we seek to remedy it by legislation we are going beyond talks and action which merely try to raise performance. The criticism of managers, attempts to raise the performance and improve the level of efficiency of staff, is not bullying. We are also going beyond the occasional horseplay of comrades at work. We are talking about industrial persecution and the kind of persecution which is deeply resented. That is one of the defining characteristics of the noble Lord's Bill.

For example, we are told—and if we believe what we read it must be true—that the musicians in the pit of La Scala thoroughly enjoyed the insults of Toscanini. They used to induce him to be more and more insulting because they enjoyed it. However, strangely enough, musicians in the Vienna Philharmonic deeply resented the very similar sarcasm of Karajan. Therefore, we are talking about resentment, coupled with persecution. We are not talking about jokes, asides and incidental remarks. We are talking about serious matters. There is ample evidence to suggest that such bullying is growing and ample evidence as to why it is growing. Previous noble Lords have stressed these matters in this debate.

I want to turn to the strengths and weaknesses of the existing law. It is arguable that the most effective form of protection against bullying at work at the moment is to go to an industrial tribunal and complain, successfully, that the acts complained of constitute constructive dismissal. One resigns, leaves the job aid says that the employer has made the position impossible so that one could not continue.

Indeed, it is a fact that if one reads many of the cases quoted in the law reports, there are some very interesting examples of where the law works now. Those cases also demonstrate that there is a great need for such law. There was a famous case in which insults to a supervisor by his superior, including the remark, in front of his staff, that he "must be brain dead", constituted constructive dismissal.

There was a case of a manager who was forced to undertake menial tasks, again in front of his staff; for example, loading a lorry. That constituted part of a case of constructive dismissal. There was another case of workmates who forcibly cut the hair of other workmates. That also was part of a sustained case of constructive dismissal. There are cases where very systematically and persistently cleaning agents were put into employees' tea. The employer did not feel that it was his business to do anything about that. That constituted a case for constructive dismissal.

Those cases of constructive dismissal demonstrate to us that there is a law dealing with those issues and it is a good job that that is so. They illustrate also that significant cases of industrial bullying exist and that the courts, when they get hold of them, do their best to deal with them.

But of course there are three problems with the constructive dismissal solution, if the Government wish to pray that in aid as to why we need not go any further. First, the employee must resign in order for there to be any possibility of compensation. The employee must resign and take the employer to a tribunal. Of course, if the employee loses he or she will not get the job back. They are out. So extreme action must be taken: employees must first separate themselves from their employment in order to achieve any redress.

Secondly, the amount of compensation that can be obtained after unfair dismissal is significantly limited. Most important, a fundamental breach of contract has to be proved. The employee has to prove that the employer's acts or acts of workmates, which the employer has not prevented, have destroyed the relationship of trust and confidence. That is quite fundamental. It is a common law matter. The common law assumes that there must be in that employment contract an element of trust and confidence. Therefore, it has to be shown that the employer's act has destroyed fundamentally the possibility of continued employment. I suggest to noble Lords and the Government that a very great deal of bullying can take place before one reaches the point at which a court will say that there has been a fundamental breach of the employment contract.

Therefore, spokespersons for the Government have pointed out that we must also have in our minds the criminal justice system in the form of the Criminal Justice and Public Order Act 1994, and in particular Section 145 of that Act. That makes it an offence to cause "intentional harassment, alarm or distress." You do not have to dismiss yourself in order to seek redress. However, there are weaknesses. A higher level of proof is required. You cannot really take action yourself. We are discussing a criminal act; you have to approach the police to get action taken by them. What you get at the end of the day is not compensation, redress or reconciliation; what you get, if you can sustain your case, is revenge. You might get the employer convicted and put away for six months, but that is not what we need, or what we want. We do not want revenge; we want reconciliation, and acceptance of responsibility. As the noble Lord, Lord Haskel, said, we want a higher level of industrial relations, and in the end we need a civil remedy.

The third possible way forward, which may be advanced by the Government, is to suggest that many of these incidents are forms of sexual or racial discrimination. Certainly applicants often present these cases in terms of sexual or racial discrimination—and tribunals decide that this is not the case; although if one considers the composition of legislation, there are ways in which incidents, that in other areas would be termed industrial bullying, can constitute the basis for sexual or racial discrimination.

However, as we all know, not all bullying is based on racial or sexual prejudices. That is the problem. Most bullying is personal. In some ways that is the worst thing about it because at least in the case of sexual or racial discrimination or harassment of any kind the victim can console himself or herself—if it is a consolation—that the incident was not personal. The individual can tell herself that others do not like her because she is a woman. An individual can also tell himself or herself that he or she is not the "right" colour, and that there is nothing personal in the attacks. But the incidents we are talking about constitute personal attacks on individuals who often cannot defend themselves. There need not be sexual or racial discrimination. All the incidents may be undertaken by people of the same race or the same sex. We are talking about bullying and persecution. That is what we are trying to deal with in this Bill.

Finally, I wish to say a few words about the form of the Bill. This is important. As the noble Lord said, it is in some ways a well drafted Bill. It has some novel features. However, there are three aspects of it which I cannot accept. I wish to refer to those aspects briefly this evening so that if we proceed to the Committee stage the noble Lord might like to consider those points.

First, I refer to Clause 1 and what I would call the forms of indignity. In effect this is an exemplary list, but that is not clear because the clause does not state that there could be other cases. We are given five examples of bullying, but they seem to form an inclusive list. That is dangerous because one might discover a form of bullying which is not contained in the list.

I also find the criteria a little inconsistent. Abusive behaviour or unjustified criticism must be persistent. However, that is not so in the case of verbal or physical intimidation, which apparently need not be persistent. I am not quite sure why that is so. Apparently, changes in duties or the imposition of penal sanctions can be justified. It is for the employer to show that they are justified. However, insulting or demeaning behaviour apparently is not subject to justification. It is like sexual and racial discrimination in that regard. I am worried that the courts may treat such lists as cumulative; namely, that an individual needs to have been subjected to more than one offence on these lists. I suggest to my noble friend that one can have exemplary cases as illustration. But I prefer a general overall definition of industrial bullying, indignity, or whatever we wish to prevent. I believe that a general definition with an additional liability if done by a person acting with the employer's authority would be more useful and practical than the definition on the face of the Bill.

My second problem relates to the employer's defence. I believe that some of these points were in the mind of the noble Lord, Lord Haskel, when he spoke. I understand why there is a proposed procedure; I understand that Schedule I spells out that procedure. I take it that the argument of the noble Lord, Lord Monkswell, is that the Bill will encourage employers to set up and operate such a procedure and that, therefore, one will not need to go to tribunals. But in a way, tribunals operate in that way now. A large part of Schedule 1 is a de jure version of what Tribunals do de facto in sex discrimination cases. I am not sure that it helps to put such provisions on the face of the Bill. If one does so, one encourages the employer to engage in a long-winded defence which makes cases last longer. I fear that people will find that cases brought under this provision will be what is called in tribunal language "multiday cases". That is something that one wishes to avoid whenever possible.

I wish to state briefly why something must be done about the problem of caseload overload which now threatens to destroy existing individual rights in the employment field. Fifty per cent. of cases at ITs are heard only after six months. It can take two years or more to be heard by the EAT. Moreover, all the evidence indicates that the caseload problem is about to become worse for a range of reasons that I do not have time to spell out tonight. Therefore I shall be considering at Committee stage, as I hope will my noble friend Lord Monkswell, a way to deal with the problems he raises which does not inevitably add to IT caseload. One solution might be to build on the individual employment contract, in particular as regards Section 3 of the Employment Rights Act. That provision was the result of European pressure. We might go some way with the ideas behind this Bill if we could take our action via the employment contract.

In the meantime, the Bill embodies a good idea and seeks to deal with a real problem. I am glad that we have had the debate. I look forward to hearing what the Minister says.

9.38 p.m.

Lord Lucas

My Lords, as the noble Lord, Lord McCarthy, indicated, I have reason to be grateful for the lack of attack from my Back-Benchers. I have become used to that in the last couple of debates in which I have taken part.

On this occasion we address a Bill which deals with a real problem. It is put forward with the noblest of aims by the noble Lord, Lord Monkswell. I think that all of us agree that these problems are serious; that they are seriously unpleasant. I have not seen the IPD survey. If the noble Baroness wishes to send me a copy, I shall happily read it, but from what she said, I have no reason to disagree with its conclusions.

As the noble Lord, Lord Rea, said, bullying is a trait in baboons and human beings. It is a fundamental trait in humans. It occurs in every aspect of society. However, it is clearly a trait which we can teach ourselves to grow out of. It can be dealt with. As indicated by the noble Baroness, I am most familiar with the issue in dealing with the problem in schools. The House may remember that the Government have taken a number of initiatives to deal with bullying in schools. It is a problem that we treat seriously. We provide a great deal of help to schools in dealing with it. However, as was demonstrated quite correctly by my noble friend Lord Elton in his inquiry into that subject, the best way of dealing with it is by having a whole school bullying policy—one which involves everybody in the school—rather than by means of legislation.

As the noble Baroness, Lady Gould of Potternewton, said, bullying is counter-productive for a company. The noble Lord, Lord Haskel, also made that point. A company where it is rife will be less profitable and effective than its competitors which have a proper policy and look after their employees properly. That must be a great incentive to companies to do the right thing. As the noble Baroness said, quite a number already do, and have serious policies in place to deal with workplace bullying.

There is also a large number of legislative initiatives which touch on this area. The noble Lord, Lord McCarthy, outlined several. If the noble Lord will allow me, perhaps I may cover some of that ground again and add one or two further examples. There are parts of the law that are not well used at the moment and which might well be brought to bear on this problem in the future.

We see this Bill as going far too far in dealing with the minutiae of relationships between individuals. The noble Lord, Lord McCarthy, said as much in his criticisms of the Bill. The way in which it is currently worded, the way in which it defines the offence, would cause substantial problems if it were put into effect. One need only think of applying Clause 1(2) to this House, let alone another place, to see what problems it would cause. "Persistent or recurring behaviour which is offensive" is not a problem here; nor indeed in another place. However, it would cause great difficulty for a drill sergeant. To get through that, we should probably have to retrain half the Army. "Verbal or physical intimidation" is not unknown in this place. I should be grateful for that. The Bill refers to, persistent or recurrent behaviour which is malicious or insulting". That does not happen in this place. It refers to, "persistent unjustified criticism". Given that provision, I could silence the Benches opposite. It further refers to, penal sanctions imposed without reasonable justification". I am not sure that that applies here. And it talks of, changes in his duties or responsibilities to his detriment and without reasonable justification". Were that provision to be enacted, I should be in permanent employment. I am sure that there is no reasonable justification for removing my post which any Prime Minister could ever show. Taking a reasonably light-hearted look at the clause as it is drafted shows the sort of difficulties that would arise were it to be the law. They arise because the Bill's approach trespasses too far into personal relationships.

The noble Lord, Lord McCarthy, hoped that it might be possible to redefine this clause. I should be very interested to see him try. The principal difficulty in this area lies in getting the definition right, so that there is a proper distance between areas where legislation belongs and areas where it does not.

Between the two there is the area of exhortation—in which, as I said, we have been involved in a major effort in schools. It is, broadly, the way in which the problem ought to be tackled, rather than through trying to hit what is a very intimate human problem with legislation.

I turn to the legislation that is in place. The Public Order Act 1986 created an offence of causing intentional harassment, making it unlawful for a person to use threatening words or behaviour. The offence provides an appropriate penalty for cases where harassment is intentional but which fall short of physical violence. It was introduced to deal with serious racial harassment, but applies equally to harassment on other grounds, and applies to behaviour in the workplace.

Under the Government's Protection from Harassment Bill, which we have not yet seen in this House and which is thought of as the "stalking" Bill, it will be an offence to pursue a course of conduct which causes a person to feel harassment or distress. The Bill does not exclude the offence being committed at work. It also contains civil measures enabling a person to seek an injunction preventing further harassment. Breach of an injunction is also an offence.

The Government do not intend to criminalise normal workplace arguments and the Bill includes a defence for conduct which is reasonable in the circumstances. However, that defence will not protect those who use work simply as a pretext to harass someone without reason. When the Bill comes here, I hope that those noble Lords who have spoken this evening will examine it to see whether it would solve a number of problems which they have raised.

Lord McCarthy

My Lords, I am not trying to be difficult, but is it the Government's intention to complete the passage of the Bill in this Parliament?

Lord Lucas

My Lords, I could not possibly comment on that now but I shall write to the noble Lord. I have no reason to think otherwise as it would be a waste of Parliament's time if we did not.

Bullying can, in extreme cases, lead to stress and illness. That too is covered by law. The Health and Safety Executive has issued guidance which deals with stress at work, including bullying. The guidance derives from the Health and Safety at Work etc. Act 1974. Under the Act, employers have a duty to ensure the health and safety of their employees. Ill health resulting from work-related stress, including the way in which employees are managed, falls to be treated in the same way as ill health due to other causes in the workplace. So the 1974 Act provides a basis for tackling bullying at work. That was mentioned by the noble Baroness, Lady Gould of Potternewton, and the noble Lord, Lord Haskel. It is a part of the legislation which is reasonably actively used at the moment.

The Employment Rights Act 1996 protects employees against victimisation by their employer for taking certain actions on health and safety grounds or for seeking to assert statutory employment rights. Under general employment law, employees have a contract of employment which is legally enforceable. It involves a mutual duty of trust and confidence. If either side breaks this by totally unreasonable behaviour, the other will be entitled under common law to terminate the employment relationship.

An example of such behaviour is where the employer seeks to impose significant contractual changes without the employee's consent. The employee will have good prospects of succeeding with a claim of constructive unfair dismissal. The noble Lord, Lord McCarthy, showed how useful it was for some aspects of the problem.

Protection is also provided, as the noble Lord, Lord, McCarthy, said, by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. They make it generally unlawful for an employer to subject workers to any detriment on grounds of sex, marriage, race or disability.

Cumulatively, those measures provide a broad framework of protections against various forms of unfair behaviour. Moreover, case law has helped to define the law; for example, by making it clear what may constitute sexual or racial harassment. So bullying, although not explicitly covered in law, can in practice often be dealt with under it. Indeed, a case was reported yesterday of an employee who brought a successful prosecution for assault against his employer. It shows that there are remedies under the existing law.

Generally, firms will already have some procedures in place, perhaps along the lines of the ACAS code on disciplinary practice. The Government see such guidance and the Discipline at Work Handbook, together with initiatives by the CBI, the Institute of Personnel and Development and some trade unions as offering more promising means of dealing with unacceptable behaviour at work. The noble Lord, Lord Monkswell, mentioned his own trade union which is prominent in the area. He gave examples of where it has been successful and in our view it is the principal way in which the general problem of low level bullying in its less extreme manifestations should be tackled because it is likely to achieve the greatest success with the greatest ease. I add that the Employment Rights Act 1996 requires employers to notify staff about grievance procedures, so the law already accepts that employees must have a channel for raising complaints.

The Bill of the noble Lord, Lord Monkswell, is a brave attempt to incorporate a right to dignity into legislation. However, the basic concept of dignity at work is difficult to incorporate into law. It is both an imprecise and highly subjective concept and therefore liable to be construed in different ways. We feel that that cannot be good for employers, employees or those who have to apply the law. No one wants to see the law made more complex or confusing, yet that would be the effect of the Bill.

I hope that what I have said on what we are doing at present and the other opportunities which exist for legislation will provide some comfort for the noble Lord when I say that at this stage we cannot offer him any hope of support for the Bill.

9.50 p.m.

Lord Monkswell

My Lords, I am encouraged by the Minister's response. He started by saying yes, there is a recognition that there is a very real problem, and he finished by saying that he was unconvinced at this stage that the Government should support the Bill. That suggests that they recognise the problem but are not sure that this is necessarily the best vehicle to resolve it.

First, however, I thank all noble Lords who have taken part in the debate, which has been very useful and interesting. A number of noble Lords were able to highlight issues on which I could not expand in my opening remarks. I am particularly grateful to my noble friend Lady Gould of Potternewton who, using her experience of the sex and race legislation, pointed out that those provisions had weaknesses when it came to bullying at work. She also brought in the international dimension. We need to remember that bullying at work is not just a British problem. It is experienced in other countries and it is interesting that other countries have taken action within their own culture to try to solve it.

The noble Lord, Lord Rea, highlighted the medical aspects and the grievous problems that individuals can suffer as a result of bullying at work. My noble friend Lord Haskel very effectively pointed out that bullying at work is bad for business. He identified a matter of which I was not aware; namely, the good work done by Cranfield in its management training for middle management, identifying the need for dignity at work as part of management training.

We are all indebted to the experience and knowledge of the noble Lord, Lord McCarthy, in this legal minefield of an area, if I may so put it. He pointed out the inadequacies of the existing law. I was very pleased to have his critical examination of the Bill and his suggestions for amendments and changes, which I am sure we will be able to accommodate in Committee. I am sure that the Committee stage will be very useful.

I hope that the Minister will be at his place when we have the Committee stage, that he will listen to and be involved in the debates, and that the deliberations as the Bill becomes better as the result of constructive criticism will persuade the Government that it is a good vehicle by which to tackle the problem. It is worth pointing out that the Government have taken action on bullying in schools. It has been raised as a major public issue within the last couple of years. The Government have insisted upon, and have provided money for, a whole school policy to deal with bullying. Whether or not there are incidents of bullying at a school, there is a requirement that every school should have a policy aimed at preventing bullying and tackling it in a sensible and progressive way when it happens. So the schools are tackling the problem.

The Government have pointed out that bullying or stalking on the public highway, if I may so put it, are to be tackled by a Bill that the Government themselves will bring in. It will require police action to be taken if someone is bullied or stalked on the public highway. Only last week we had a Starred Question about bullying in the Armed Forces. I was very glad to hear from the Government Front Benches total condemnation of bullying in the Armed Forces and the fact that the Ministry of Defence and the Armed Forces have policies and practices to prevent bullying, to counteract it if it is found, and to take action to deal with it if it occurs. Why should not that apply in industry, in commerce and in employment? We have taken action on schools, on the public highway and in relation to the Armed Forces. But the one area where no clear action is being taken is in employment.

My noble friend Lord McCarthy pointed out the difficulties that arise in the areas of constructive dismissal and the Public Order Act. The Minister mentioned a number of other areas. Perhaps I can quickly run through them. He mentioned the anti-stalking Bill which will provide for police or court action through injunctions. The idea of an employee going to his local police station and reporting bullying at work beggars belief in terms of the way in which employment works. And going to a court for an injunction is an expensive way of dealing with the problem and does not do anything to prevent it. It is a case of shutting the stable door after the horse has bolted.

The analogy was made with the Health and Safety at Work etc. Act. I had experience of that Act going back to 1974 when it was introduced. In the early days it was a powerful instrument of change because managers and employers felt at that point that they ran the risk of being sent to gaol if they transgressed the Act. Unfortunately, the reality is that there have been virtually no prosecutions under the Health and Safety at Work etc. Act which have resulted in managers going to prison. As a result, the Act is not applied very effectively. Good employers operate it well. The problem we face does not concern the good employer. The good employer will have the policies and practices in place. The problem is the mediocre, the poor or downright bad employer who needs to be encouraged to implement the right policies and, if he does not, needs to recognise that he will receive significant penal sanctions.

My noble friend Lord McCarthy raised criticisms in relation to references to industrial tribunals, the likely risk of employers taking a long time over cases and extending the time of the tribunals, and the problem of casework and delay. But this situation is slightly different. There are limits on the amount of compensation that can be awarded in previous normal employment sex and racial discrimination cases. In this case the draftsmen have not put any limit on the amount of compensation that can be paid and there is a requirement on employers to take action to prevent continuation of the problems.

I was intrigued by the Minister's reference to the ability of an employee to take out an action for assault. Again, I suspect that that would tie up the High Court or the relevant court and be more expensive than an industrial tribunal hearing. It is worth pointing out that I saw the specific case mentioned and believe that it revolved around a solicitor's office where presumably everyone would be knowledgeable about legal affairs and the way to take out actions for assault.

The Minister's final point in terms of the options for employees to resolve the problem was his calling into aid the actions of unions and their policies and negotiating policies with employers. I am glad to hear that that is thought to be a good thing by the Minister. However, it still leaves us with the problem that not all firms are unionised and not all employers are prepared to negotiate these policies even where there is a union present.

I hope that the debate and the reading of it by the Government will encourage them to think that we have the right vehicle to tackle this devastating problem of bullying at work. I welcome suggestions from my noble friend Lord McCarthy in terms of the amendments that are probably necessary to make the Bill more effective. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.