In the workplace, conflicts between colleagues are inevitable, particularly verbal disputes that can escalate when tempers flare. As the saying goes, "The speaker may mean no harm, but the listener takes offense." Since people interpret statements differently, these disputes often lack objective evidence and are difficult to litigate. According to the Wilkinson v. Downton case, successful lawsuits for psychological injury caused by speech are rare.
What is bullying?
Bullying is generally understood as malicious social interaction. In the workplace, it involves the abuse of power and unfair treatment, resulting in persistent offensive, threatening, isolating, or humiliating behaviour that causes frustration, humiliation, and injury to the victim, leading to severe physical and mental stress.
Workplace, school, and cyberbullying are common occurrences, causing numerous victims to develop emotional problems like anxiety and depression due to invisible pressure. The Modernising of the Wilkinson v. Downton, J.P.I. Law 2023,1,13-35 mentions that Wilkinson-type cases are being modernized, suggesting law reforms are needed. However, psychological trauma remains one of the most controversial aspects in legal terms.
Controversial Points
In the workplace, according to Section 5(1) of the Employees' Compensation Ordinance, Cap. 282 of the laws of Hong Kong, employers are liable to pay compensation for physical injuries sustained by employees during employment. However, for psychological injuries that are invisible to the naked eye, the controversial points focus on:
Whether workplace incidents involve unusual stressors
Whether the psychological trauma could reasonably result from the situation, considering all medical and non-medical evidence
Whether there is a significant causal relationship between the incidents and the psychological trauma claim
It's important to note that regular communication difficulties between supervisors and employees are considered normal workplace interactions, not unusual circumstances.
What if the bully has a mental illness?
While patients should be treated with understanding and tolerance, if they become perpetrators, the employer bears some transferred responsibility as they have a duty of care to provide a safe working environment for employees.
Collecting Evidence
Generally, workplace communication records such as WhatsApp messages, emails, voice recordings, or videos can serve as evidence. Courts will evaluate the credibility and possibility of incidents objectively based on their content. Medical treatment or counseling records related to workplace bullying can also strengthen the case.
Court Considerations
Courts will determine whether the employee's mental illness was caused by workplace incidents and evaluate witness testimonies, considering witness motives and overall evidence credibility. If witness testimonies are overly emotional or inconsistent with facts, they may be deemed unreliable and inadmissible.
December 2024
Dr. Anthony Lai and Mr. Alan Lau
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