Analysis of Potential Legal Strategies for Mitigation of Workplace Bullying in India

Bullying, Harassment and Violence at Workplace

Harassment and bullying at workplace are widely used interchangeably and thus have created confusion in precisely delineating the concepts. Many of the scholars also have contributed to this confusion, for example, Einarsen has observed that ‘bullying’ and ‘harassment’ can be used interchangeably to describe the same phenomena (Einarsen, 2000). The same mistake was made by the Andhra Pradesh high court in the case of L. Nagaraju v. Syndicate Bank, Hyderabad and others, (2014 (2) ALD 758). Court observed that ‘Harassment at work place’ or ‘Bullying’ or any kind of unreasonable behaviour amounts to harassment at workplace and went onto define ‘workplace harassment’ as any type of unwelcome action towards an employee by the employer or anybody on his behalf that leads to difficulty in performing assigned tasks or causes the employee to feel he or she is working in a hostile environment. The harassment may be based on such factors as race, gender, culture, age, sexual orientation or religious preference.

The difference of these concepts is very important in an Anglo-Saxon country like India, where there is no dignity-based laws and historically harassment has been associated with discriminatory harassment. Harassment is typically viewed as behaviour that causes humiliation, offence or intimidation on the basis of another person’s race, gender, sexuality, ethno-religious background, disability/disease, marital status, age or other characteristic that is endemic to that individual, or their relationship to someone with any of these characteristics (Rayner & Hoel, 1997). The distinction between bullying and harassment is the lack of immutable characteristics in the former as a reason for the treatment.

The difference between workplace bullying and violence is also diaphanous. Workplace violence has been widely included in the ambit of workplace bullying. The difference between the concepts is that workplace violence encompasses behaviour that usually has criminal elements to it or would be considered as criminal behaviour if it happened outside work setting, whereas workplace bullying includes act per se which does not have any criminal elements to it and thereby is not actionable under the criminal legal system of the country.

Interpersonal Workplace Bullying

Interpersonal bullying at work has been the main focus of study and legislations pertaining to workplace bullying and in most of the jurisdiction considered as its sole strand. Anti-bullying laws in most of the countries do not provide an exhaustive list of bullying behaviours, and in spite of wide criticism follow the reasonable persons test for determining as to what constitutes bullying as different from reasonable management action carried out in a reasonable manner (Réaume, 2003). Hence, a clear, unambiguous definition of workplace bullying becomes all the more important from a regulatory stand point.

One of the definitions which is considered as a benchmark ‘best-practice’ classification and is increasingly being called up in official documents around the world is the one provided by Irish task force on the prevention of workplace bullying (Chappell & Martino, 2006), which has defined workplace bullying as follows:

Workplace bullying is repeated inappropriate behavior, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a one-off incident is not considered to be bullying.

As per the definition, to constitute bullying there should be

Repetition of inappropriate behaviour and it

Apart from these attributes, the regulatory authorities across the world have taken into consideration many aspects including malicious intention, significant one-off events, requirement of harm, negligence, power imbalance, etc., while drafting a regulatory definition for workplace bullying.

Swedish law containing provisions on measures against victimization at work, which is the first legal instrument against bullying, has defined it as recurrent reprehensible or distinctly negative actions that are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community. Swedish law does not require intention or the presence of power imbalance between the perpetrator and the victim to constitute workplace bullying. Definition of moral harassment as per laws of Belgium does not include verbal violence or significant one-off events, behaviour that already had remedy under existing law (Lippel, 2010). It also integrates discriminatory harassment into the ambit of moral harassment. There is no statutory legal definition for workplace bullying in Germany but German Federal Labour Court (Bundesarbeitsgericht) described mobbing as

systematic hostilities, harassment or discrimination, either among co-workers or by a supervisor (Fischinger, 2010), hence avoiding power imbalance and intention as an essential elements of mobbing. Malicious intent might lead to an increased award in Germany (Lippel, 2010). As per Australian, Fair Work Amendment Act 2013, workplace bullying is repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety. Hence harm is an essential element in Australian Law but malicious intention is excluded. Healthy Workplace Bill of USA requires intention as an element to constitute bullying, the strict condition in the bill is attributed to the strong resistance to state regulation of working conditions by business community. As per the bill even though a single act normally will not constitute abusive conduct, one especially severe and egregious act may constitute bullying. Similarly in Qubec Labour Standards Act, a single serious incidence of such behaviour that has a lasting harmful effect on an employee is also considered to be bullying.

Japanese law on power harassment includes power imbalance between the perpetrator and the victim as an essential element and organizational hierarchy as the source of the power with superior being the bully and subordinate the victim. Many scholars have also opined that bullying conflict cannot be called bullying if two parties of approximately equal strength are in conflict (Einarsen et al., 2011). What is to be noted is that the formal structure of an organization hardly has any bearing on its power structure and hence existence of, downward, lateral and upward bullying should be recognized. Power can be drawn from informal sources, such as contacts with influential people; an individual’s standing in the organization and knowledge of the other person’s vulnerabilities that could be exploited (Hoel & Cooper, 2001).

Even though not mentioned in any legal instruments to counter bullying at workplace, some scholars have suggested that to constitute bullying at workplace it must occur over a particular duration, for example, Leymann suggested exposure of more than 6 months as operational definition of workplace bullying (Leymann, 1996). The 6-month criterion was based on the duration for assessment of psychiatric conditions. Regulatory definitions have avoided this criterion as it is not reasonable to let a victim suffer for a lengthy period to seek redressal.

Depersonalized Bullying

Most of the regulatory definitions emphasis on target orientation, persistence, power disparity and harm as its elements. These are the essential hallmarks of interpersonal bullying (D’Cruz & Noronha, 2012). It excludes depersonalized bullying from its ambit. A general definition of depersonalized bullying is routine subjugation, both covert and overt, of employees by contextual, structural and processual elements of organizational design, which are implemented by supervisors and managers who resort to abusive behaviours in an impersonal way to achieve organizational effectiveness (D’Cruz, 2010). The cardinal deference between interpersonal and depersonalized bullying is the presence of organizational objectives or culture in the latter.

The French definition of moral harassment envisaged in the French Labour Code is very pertinent when analyzing depersonalized bullying as French legal system is one of the few legal systems which have the history of taking recourse against depersonalized bullying at workplace. France has taken action against industrial giants, such as France Télécom and Renault for depersonalized bullying. For a detailed analysis, see France of this article. The French Labour Code defines moral harassment as ‘repeated acts leading to a deterioration of the working conditions and that are likely to harm the dignity, the physical or psychological heath of the victim or his professional career’. The definition is widely drafted and has been interpreted to bring into its ambit depersonalized bullying along with interpersonal bullying.

Proposal of a Definition Suited for India

India is on the cusp of wave of labour law reforms with primary thrust on deregulation. Any regulatory definition of workplace bullying should factor in this circumstance. The regulatory definition appropriate in the Indian context shall have to be narrow and stringent enough to avoid frivolous litigation and threshold should be high enough to exclude fair management practices from its ambit. It also has to be wide enough to include depersonalized bullying in its ambit. Hence, the regulatory definition should include any behaviour which undermines the dignity of the individual as its elements which further can be narrowed by requiring malicious intention. It should ideally include one-off events having lasting harmful effect on an employee and exclude requirement of power imbalance from its ambit. Taking into consideration these factors, the following definition is proposed:

Workplace bullying is

Discrimination Laws

Indian legal system similar to United Kingdom and USA focuses on mitigation of discrimination based on past inequalities in society. India legislated against sexual harassment by enacting, ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)’ Act in 2013. Even prior to the legislation, in 1997, the Supreme Court in the landmark case of Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241 had laid the guidelines of what constituted ‘sexual harassment’ and vested obligation upon the employer (or other responsible persons) to provide for measures and procedures that will prevent and deter sexual harassment at workplace. The act is applicable to the organized and unorganized employees and even includes domestic workers in its ambit. It contemplates internal, external complaints committee and governmental monitoring. It also prescribes punishment for malicious complaints and includes conciliation for a dispute which is enshrined to prevent frivolous complaints.

There has been a spike in sexual harassment complaints after its enactment but the compliance level of the statute remains very low (Earnest and Young Survey, 2016), and it is also too early for its impact to be evaluated. Because of its wide reach and dispute resolution mechanism provided in the statute, it would seem to be a good platform for addressing a workplace-based harassment but widening of this legislation to include status bind workplace bullying in its ambit is complicated because of many reasons. Primarily, the legislation is narrowly designed; it is not even gender neutral and does not include sexual harassment against men in its ambit in spite of increasing incidence of sexual harassment against men being reported in India (The Economic Times & Synovate, 2010). It is also widely claimed that inclusion of status blind harassment in the ambit of sexual harassment law or its coexistence might lead to trivialization of specific harassment of sexual harassment against women, which it intends to address (Friedman & Whitman, 2003). In India, which is historically known to have a discrimination-based legal system, such an inclusion might also lead to trivialization of status blind workplace bullying. Even if it is jointly enacted, it has to be ensured that it is not conflated to obscure their distinctive features and undermine their individual specificity, visibility and need for action (Lee, 2002).

Similarly, discrimination protection for lower caste by abolishing the practice of untouchability is envisaged in, The Protection of Civil Rights Act 1955. Maternity Benefits Act, 1961, provides rules against discrimination protection for pregnant women in workplace. None of these specific anti-discrimination legislations have the capability to mitigate workplace bullying even if strengthened. An all-encompassing statute which includes bullying as well as status-based discrimination in its ambit is not advisable considering the risk of trivialization. Hence, if India envisions a dignity-based workplace bullying law, it is advisable to be a stand-alone-specific anti-bullying legislation and not include the existing discrimination laws in its ambit but has the wide applicability akin to the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

Indian Constitution

There are various provisions under the Indian Constitution which refers to dignity of workers. Article 21 of the Constitution of India is a fundamental right aimed at protecting life and liberty of a citizen. It came up for interpretation umpteen times before the apex court and the court has observed that right to live with human dignity is one of its tenets (Francis Coralie Mullin v. The Administrator Union Territory of Delhi and Others (1981) AIR 746). The apex court has also interpreted that right to dignity would include right to just and humane conditions of work in its ambit (Bandhua Mukti Morcha v. Union Of India & Others 1984 3 SCC 161). The court adopted the principle from Article 42 of the Constitution of India which enshrines, ‘The court adopted the principle from Article 42 of the Constitution of India which enshrines that, the State shall make provision for securing just and humane conditions of work, and Article 43 of the Constitution which states that the State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.’ Both the articles falls in Part IV, directive principles of state policy and hence by itself is not justiciable but the court indirectly enforces the directive principle by linking it with fundamental rights envisaged in Part III. Fundamental rights is only guaranteed against state action and normally cannot be enforced against private individuals but the Supreme Court in Vishaka case held that failure to protect women against sexual harassment at workplace tantamount to violation of the fundamental rights and laid down the guidelines to prohibit sexual harassment at workplace and provided a framework for legislation on the aspect. The constitution and its emphasis on dignity ensures that any dignity-based workplace bullying law if legislated will not exist on a vacuum, it will be merely providing legislative framework for an existing fundamental constitutional value.

The Factories Act, 1948

The Factories Act, 1948 is the principal occupational and health hazard legislation of India. Several countries, such as Australia and Italy, have recognized workplace bullying as an occupational safety and health hazard, and have mitigated workplace bullying using their occupational safety and health hazard laws (Harthill, 2011).

The Factories Act, 1948 does not specifically provide for workplace bullying as safety or health hazard issue but, Section 7A of the Act imposes a general duty of care, it states ‘Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory’. This section was inserted by Factories Amendment Act of 1987 and has been adopted from Section 2 of the Health and Safety at Work Act of 1974 of United Kingdom. This section of Health and Safety at Work Act of 1974 is considered as a useful piece of legislation for employees who are bullied at work (Hickling, 2006). The Factories Act is a statue if properly strengthened and can provide recourse against workplace bullying in factories. Section 7A should be interpreted by the courts to include workplace bullying as a health issue taking the cue from United Kingdom, as it also provides criminal liability for the employer.

Industrial Disputes Act, 1947

Industrial Disputes Act provides for many measures against workplace bullying including measures against retrenchment of workmen. As per the act, the employer has to obtain prior approval of the government at least 60 days before the date of intended retrenchment.

As per Section 9C(1) of the Act, a Grievance Redressal Committee needs to be constituted for resolution of disputes arising out of individual grievances; it shall consist of equal number of members from the employer and the workmen. This is an effective fora for raising disputes pertaining to bullying at workplace but the provision is watered down to an extend by the appeal provision envisaged in Section 9C(7) of the act as per which party aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee. This effectively makes it ineffective against depersonalized bullying and makes it less potent to counter personalized workplace bullying as it gives the employer unfettered discretion to make the final decision.

The fetters provided by ID Act especially pertaining to permission for retrenchment has been the foci of call for reforms by the business community. Hence, anymore strengthening of the provisions would have to meet with a stiff opposition from the business community. The Act is also only applicable to workmen in an industry leaving out majority of the workers outside its ambit.

Standing Orders Act

The Standing Orders Act orders remove the ability of the employer of large industrial establishment to unilaterally regulate terms of job, work hours, timing, leave grant, productivity measures and other matters. It mandate that the employer to classify its employees, state the shifts, payment of wages, rules for vacation, rules for sick leave, holidays, rules for termination among others and submit it to the certifying authority who shall hear the trade union or other representatives of the workmen and consider their objections before certifying the order. There is an appeal provision under the statute for the trade union or representatives aggrieved by the order of the certifying authority. Any standing order may be questioned under article 226 of the Constitution of India, if the Certified Standing Orders are illegal, arbitrary and volatile of the principles of natural justice. Subjugation by the contextual, structural and processual elements of organizational design can be mitigated to some extend if the conditions of services are predetermined. As the main objective of depersonalized bullying is organizational effectiveness, the standing orders provide a framework of service conditions which if transgressed for achieving organizational effectiveness becomes an illegal act.

There are plethora of other central and state legislations which provides for measures against some aspects of bullying but no exhaustive remedy is provided for by any of these statutes. Strengthening of any of these statues to include workplace bullying in its ambit is not plausible. The aforementioned laws exist on a limited sphere and its application is also circumscribed to a limited work force or for a particular form of harassment. For a sustainable and effective regulatory regime countering workplace bullying, strengthening of these existing legal instruments alone would be found wanting.

Specific Anti-bullying Legislation

There exist strong doubt with regard to the effectiveness of anti-bullying legislations; it is equated to legislating on being nice at office and is largely recommended to the sphere of soft human resource (HR) policies. Such legislations are also accused of encouraging frivolous litigations and being an impediment to productivity (Hoel, 2009). In the back drop of Indian socio-economic context, it is important to analyze anti-workplace bullying of other jurisdictions to see if they are appropriate for Indian workplaces.

Any analysis of anti-bullying legislation should start from the two fundamental paradigms which shaped harassment laws across the globe: anti-discrimination paradigm and dignity paradigm. Anti-discrimination paradigm is based on some specific status of the individual which makes them vulnerable, whereas dignity paradigm is status blind and addresses the dignity of all the employees. Many jurisdictions of the world starting from the Continental European countries have adopted specific legislation addressing bullying at workplace. Some have been really broad and the other very narrow in interpretation of the concept which it addresses. Most of these jurisdictions are based on the ‘dignity’ paradigm, which in turn has its basis on tradition of recognizing respect for individuals at all levels including during work. In contrast to the European dignity paradigm, Indian law, like the Anglo-American legal system, is based on anti-discrimination paradigm, which has the goal of creating equal treatment for minority groups in the workplace which is in turn based on the legislative intent to mitigate inequalities in society. This is primarily because of the English colonialist history and consequently all the important labour legislation of India being colonial transplantation of English Laws. The anti-discrimination paradigm presuppose a relatively fluid job market, in which employees regularly quit, get fired, termination and advancement to a new job itself is seen as a deterrent to workplace bullying (Friedman & Whitman, 2003). In India which has relatively rigid and stagnant job market, the paradigm has been one of the principal reasons in creating a legal vacuum against workplace bullying.

Various authors supporting the anti-discrimination paradigm advocate that focusing on general dignity of employees rather than status-based discrimination would entail trivialization of specific discrimination, like sexual harassment (Abrams, 1998). The co-existence of law against sexual harassment and workplace bullying is an obvious solution as it counters both sexual harassment and workplace bullying, but the experience of the continental European countries is that the shift from discrimination to dignity has led to the decrease in importance to the former (Friedman & Whitman, 2003). But it has to be considered that Continental Europeans never really accepted the doctrinal theory according to which sexual harassment is a form of discrimination. This sceptical view of trivialization of one by the other is to some extend mitigated by the experience of countries, such as Australia, Quebec and Chile, where well-established anti-discrimination law pre-existed anti-bullying legislation, but it has to be considered that the effectiveness of the legislation and its impact on its anti-discrimination laws has either not been subjected to a comprehensive study or the laws are in infancy to have an understanding of its ramifications.

Political factors have a great bearing on the transferability of legal rules. It determines whether the transplant can occur in the first place. India is on the process of reforming its labour laws. The thrust of such reforms has been entirely on making the environment conducive for business and attract investments. Consequently, there is a strong resistance against state regulation of work conditions. Any workplace bullying legislation which imposes liability on the owner and increasing bureaucratic micromanagement of workplaces affecting productivity thereby would most likely be not welcomed by the legislature.

Many of the legislations against workplace bullying have been criticized as impediment for productivity; for example, Australian law against workplace bullying gives Fair Work Commission (FWC) jurisdiction to deal with matters pertaining to workplace bullying. Each time an employee makes an application for an order to stop bullying to the FWC, the employer will be required to attend and defend the allegations, as there is no obligation on the employee to first approach the employer. Even for low-level allegations which were traditionally considered and solved as HR and personnel issues internally are externalized (Carter, 2013); this gives scope to red-tapism and could be detrimental to productivity.

Legal and regulatory system generally stresses on the following policy goals with regard to workplace bullying:

Prevention

Many jurisdictions have formulated laws stressing all these policy objectives, many have confined to one or more.

Development by Juristic Reasoning

Judicial interpretation can be a route for introduction of workplace bullying law in India. Judicial activism has contributed to the protection of many fundamental human rights in India. One striking contribution has been formulation of guidelines to prevent sexual harassment of working women in all workplaces (Vishaka Case, 1997). The Supreme Court relied on International Conventions and interpreted many provisions of the Constitution to formulate the guidelines. The Stare Decisis principle is envisaged in Article 141 of the constitution thereby making it the rule of the land. In this case, the court treated legislative deficit for protection of fundamental right as a violation of fundamental right itself.

The courts of many countries, such as United Kingdom and Italy, have used reasoning to mitigate the vice of workplace bullying in spite of the lack of any specific anti-bullying legal instruments. The judicial decisions of United Kingdom are of particular importance to India because Indian courts have heavily referred to English decisions and it is the most-cited foreign jurisdiction in Indian case laws (Smith, 2006).

Safety at Workplace Law

Many countries, such as Italy and Australia, have mitigated workplace bullying by strengthening their existing safety at workplace law.

Tort

In many jurisdictions, such as USA, Japan, Germany and United Kingdom, workplace bullying has a remedy in law of torts. In some jurisdictions, it is the exclusive remedy, whereas in others, it coexists with other remedies.