Legal

Could managers be held responsible for workplace bullying?

15 Oct 2019 By Fudia Smartt

A landmark trial in France over a toxic work environment has potential ramifications for British businesses, says Fudia Smartt

In July, the landmark France Télécom trial finally came to a close. For two-and-a-half months, the Paris Criminal Court listened to evidence brought against former France Télécom executives, including former CEO Didier Lombard and former head of human resources Olivier Barberot, who stood accused of the charge of ‘moral harassment’. The accused denied the charges, which could result in imprisonment of up to a year, plus significant fines.

In the mid 2000s, France Télécom (now known as Orange) was privatised. This led to massive cultural change at the company, which sought to shift its working practices to be able to compete in the private sector. Part of this included plans by Lombard to cut more than a fifth of the workforce, resulting in more than 22,000 job losses. 

Amid this change, seven former executives are accused of having intentionally created a toxic work environment to force workers out and in turn speed up their restructuring plans. The tactics they are accused of using include requiring some staff to routinely change their job or relocate to different workplaces, or simply not providing staff with work to do.

Some 35 employees are known to have taken their lives between 2008 and 2009, many of whom left notes saying the company had made their lives unbearable. This led to a public inquiry into practices at the company, which resulted in criminal proceedings.

The verdict in this case is due on 20 December 2019. Many are waiting on the outcome, as some commentators predict it could set a precedent and lead to more cases of its ilk being brought globally. This is the first time managers of a company of this size could be held criminally responsible for implementing a strategy of bullying, even though they did not have direct dealings with the affected employees. 

The UK legal position

In the UK, the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force in April 2008, was introduced to make it easier to convict companies of corporate manslaughter and to impose unlimited fines. However, there is no liability for individuals under the Act. Instead, such claims can be brought against individual officers or directors under the common law offence known as ‘gross negligence manslaughter’, or existing health and safety legislation. 

It is therefore legally possible for a similar claim to be brought in the UK. However, in practice, this may be difficult in part because of a lack of transparency on the issue. Unlike in other countries such as Japan, workplace suicides are not recorded in the UK. Making such information available may assist the Health and Safety Executive in bringing prosecutions against offending employers. 

This could be particularly needed in certain sectors, as highlighted by a 2017 report published by the Office for National Statistics (ONS), which identified a link between certain occupations and a higher risk of suicides. For instance, the ONS report noted that more than 300 nurses in England and Wales took their lives between 2011 and 2017. 

Many fear a no-deal Brexit could lead to a recession and mass redundancies. If employers in the UK undertake restructuring exercises in a cavalier or cynical manner that leads to staff injuring themselves or dying, it is possible it could lead to directors and managers being sued. 

As suicide rates in the UK continue to rise, employers would do well to consider the impact of their restructuring plans and the working culture on the mental health of their staff. 

Fudia Smartt is a partner at Spencer West

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