Bullying

01 April 2016

Updated April 2016

Gives introductory guidance on bullying. Coves the definition of bullying, the employer's duty to provide a work environment which protects the health, safety and welfare of their employees, risk assessment including the risks of bullying in the workplace leading to a safety statement, HSE and WRC Codes of Practice on bullying, legal action and recent case law.

There is no statutory definition of bullying. Bullying is defined under specific Codes of Practice including the Code of Practice on Grievance and Disciplinary Procedures, the Industrial Relations Act Code and the Health and Safety Authority Code. The Industrial Relations Code states that bullying may be viewed as repeated inappropriate behaviour, which could reasonably be regarded as undermining the individual’s right to dignity at work. From the above it is clear that once off incidents will not be classified as bullying, there has to be a repeated pattern to the behaviour.

The following acts, if repeated, may be viewed as examples of bullying behaviour:

  • exclusion with negative results
  • verbal abuse or insults
  • physical abuse
  • less favourable treatment than colleagues
  • acts of intrusion such as pestering, spying or stalking
  • menacing behaviour
  • intimidation
  • aggression
  • undermining behaviour
  • humiliation
  • withholding work related information

Employers have a common law duty and a duty under the Health Safety and Welfare at Work Acts 2005 to 2014 to provide a work environment which protects the health, safety and welfare of their employees which includes protection of employees from bullying. Bullying has been recognised as a major cause of stress related claims in workplaces.

An employer’s legal duty to care properly for the health and safety of employees includes a responsibility to prevent a bullying related injury. If this duty is not met by the employer, then the court may treat or look on the failure as a breach of the contract of employment. This would enable the employee to claim constructive dismissal, in other words, that they had no option but to resign. As constructive dismissal is seen as a last resort, the employee will have to have exhausted all internal grievance procedures before leaving their employment to claim dismissal.

Employers are obliged under the Health, Safety and Welfare at Work Acts 2005 to 2014 to carry out a risk assessment at the place of work of their employees. This assessment should include the risks of bullying in the workplace. The results of this assessment should be documented in written form. Following the assessment, preventative measures should be put in place to eliminate such risks or bring the risks down to an acceptable level.

In addition, employers are required to prepare a safety statement on foot of their risk assessment

The safety statement must set out in writing how health, safety and welfare are to be achieved in the work environment and specify the risks assessed and the hazards identified in the investigation. It must further set out the resources provided and the protective and preventative measures taken at the place of work. It should also identify the co-operation needed by the employee and the job titles of the people responsible for safety tasks assigned to them.

The statement should be made in a form, manner and language (if appropriate) which is easily understandable by the employees. A copy of the safety statement must be available for inspection in or near every place of work to which it relates. It should be brought to the attention of new employees when commencing employment and to specific employees who may be exposed to a specific risk under the safety statement.

The Health and Safety Authority 2007 Code of Practice is intended to provide practical guidance for employers on identifying and preventing bullying at work arising from their duties under the Safety, Health and Welfare at Work Acts 2005 to 2014.

The Code of Practice sets out a guide for employers on how to devise a bullying policy and how it needs to be integrated into the health and safety statement. If bullying at work is identified as a hazard, the extent of the hazard or risk needs to be assessed and preventative measures put in place. One of the preventative measures, indeed the main preventative measure, is the bullying prevention policy itself. The Code sets out ways of identifying bullying as a hazard. It further gives guidance on how to assess bullying as a risk factor and recommends preventative measures such as training and development and access to supportive structures, both internal and external.

Employers must manage and conduct work activities in such a way as to prevent bullying occurring. The employer’s overall strategy to combat bullying should be devised in collaboration with employees, safety representatives and trade unions where applicable and the Code contemplates an active consultation phase. It refers to the negotiation of the bullying prevention policy and complaints procedure and it talks about the need to listen to feedback from employees and assess whether bullying is a hazard. The policy and means of resolving bullying at work needs to be understood by all employees which means translating it for non English speakers.

The Code provides detailed guidance on how to informally and formally investigate and resolve complaints of bullying with enhanced guidance on:

  • who should investigate
  • who should decide whether a complaint is well founded
  • how quickly the investigation happens
  • how interviews are conducted
  • suggestions for managing different outcomes

It reinforces the message that employers need to arm themselves with the appropriate expertise to identify, prevent and eradicate the occurrence of bullying at work. It signals to employers that the bar has been raised somewhat for the proper management of bullying and this may now require smaller businesses to lean on external service providers to help them through the process.

The bullying policy should be reviewed where there are changes in the workplace, changes in the law and by reference to the employer’s experience.

The Labour Relations Commission (LRC) (now the Workplace Relations Commission (WRC)) has also produced a Code of Practice on Bullying Procedures.

Bullying is not a cause of action in itself. The issue of bullying can feature in personal injury, breach of contract and/or wrongful dismissal claims. With effect from July 2012, all High Court personal injury cases arising out of an allegation of bullying and/or harassment are to be set down for trial in the non-jury list and not the personal injuries list. This is an acknowledgment that these cases can be lengthy, involve many witnesses and have high running costs.

The jurisprudence from the courts on the topic of bullying continues to evolve. The case law demonstrates that there are many obstacles to overcome for employees to succeed. However certain key elements have been identified as necessary in order to progress a claim. The employee needs to be able to show a breach of duty on the employer's part, causation and foreseeability, that the act complained of constituted bullying (as identified above) and that this caused or at least contributed in a significant manner to the psychiatric injury complained of.

Two recent decisions are of particular note for both employers and employees regarding what constitutes workplace bullying.

Glynn v Minister for Justice

In this case ([2014] IEHC 133), the High Court rejected a claim by a civil servant employed on clerical duties at a Garda station that she suffered stress as a result of being bullied and harassed. The case provides a useful set of guidelines in distinguishing between three key terms that are commonly and sometimes incorrectly interchanged in the context of workplace bullying, namely occupational stress, workplace stress and bullying.

The Court confirmed that occupational stress is not actionable. It is something which every employed person may experience at some stage of their working life and can occur for a variety of reasons, many of which are unrelated to bullying. Workplace stress can be actionable if certain legal criteria are satisfied. It can however also be the result of behaviour which falls short of bullying. The differentiating factor is that it lacks the degree of deliberateness which is the hallmark of bullying. Bullying itself is more deliberate and is one of the more obnoxious traits in human behaviour. It involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct intended to reduce that person's self worth.

The High Court adopted the principles set out in Quigley v Complex Tooling and Moulding Ltd [2008] IESC 44 where the Supreme Court accepted the definition of bullying set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration Order) 2002 (SI No 17 of 2002) as repeated inappropriate behaviour, 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 the definition may be an affront to dignity at work but as a once off incident, it is not considered to be bullying. 

This case also reiterates that bullying must involve an objective element and not comprise solely of a subjective test. The Court said that for reasons of common sense the test must be an objective one, otherwise most employers would be vulnerable to allegations of bullying based purely on subjective perceptions of employees.

Una Ruffley v The Board of Management of St Anne's School

The Court of Appeal (CA) recently overturned ([2015] IECA 287) what was the largest bullying award to date directed by the Courts. In the case of Una Ruffley v the Board of Management of St Anne's School [2014] IEHC 235, the High Court had awarded a special needs assistant the sum of €255,276 in compensation and loss of earnings as a result of bullying which she suffered in the workplace. The High Court was of the view that the employer's disciplinary process and the unfair treatment afforded to the employee could be described as bullying.

By a majority of two to one, the CA overturned that decision and found that the employee had been treated unfairly by a botched disciplinary process but that the conduct of the school management did not come close to meeting the definition of bullying set out in Quigley v Complex Tooling and Moulding Ltd (referred to above). The Court found that the definition of bullying as set out above had to be stretched beyond breaking point to fit this case. The CA was also concerned that, if the High Court decision stood, it would widen the tort of bullying to all sorts of situations it never intended to cover.

At its worst, the Court stated that it was a hopelessly flawed disciplinary process, however regardless of the flaws it was not a case of repeated inappropriate offensive behaviour intended to destroy the employee's dignity at work. The Court found just one incident that might be interpreted as showing inappropriate behaviour on the part of the school that could have undermined the employee's dignity at work. However this was an isolated incident and didn’t follow the repeated pattern necessary to qualify under the definition set out above.

Comment

The above cases provide some useful takeaways for employers in dealing with issues and allegations of bullying in the workplace. These include:
  • The need to have a detailed bullying policy in place, so that if and when an incident arises an employer knows how to deal with it.
  • Reaffirming that the definition of bullying as set out in the Industrial Relations Act Code of Practice stands.
  • The test to be applied in determining whether or not behaviour could be regarded as undermining the individual's right to dignity at work is an objective one.
  • A once off action does not amount to bullying – there has to be a repeated pattern.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.