Draft legislation has been proposed by the Gibraltar Government to amend the Employment (Bullying at Work) Act 2014 (the “Act”) in which they seek to address the concerns of the Court following a high-profile bullying scandal that engulfed the Gibraltar Health Authority.
Judge Liam Yates raised concerns that the law was badly drafted and lacked clarity especially with regards to the definition of bullying under the Act.
It was stated by the President of the Court of Appeal that “there is a lack of clarity about fundamental questions such as precisely what amounts to unlawful bullying and when the employer will be personally liable for the acts of bullying by employees.”
As such the Government have proposed changes to update the Act. These changes involve defining bullying which “means” (as opposed to behaviour which “includes” as per the existing legislation) (i) persistent behaviour which is offensive, intimidating, abusive, malicious or insulting; (ii) persistent unjustified criticism; (iii) punishment imposed without justification; or (iv) detrimental changes to duties or responsibilities without reasonable justification. Points (ii), (iii) and (iv) must include “behaviour which is offensive, intimidating, abusive, malicious or insulting.”
Further, the amendments to the Act include the insertion of the following:
“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.”
This will be seen as a way of clarifying an employer’s responsibility for an employee’s conduct.
What this means is that bullying may be more closely defined to harassment, for which there is existing legislation, with increase in overlap between the Act and such harassment legislation that is currently in place.
It remains to be seen how any proposed legislation will be implemented. The amendments are not overly prescriptive, and it appears that the Government will leave case law to develop what constitutes bullying. However, with a backlog in tribunal cases it may mean there is sometime before we see how the proposed changes, if passed into law, are applied.