bullying in the irish workplace-how to deal with bullying

http://EmploymentRightsIreland.com

Bullying in the Workplace

Midlands Anti Bullying Network,Mullingar

A talk by Terry Gorry, October, 2015


Special Needs Assistant awarded €255,276 for bullying

• In 2014 the High Court awarded an SNA €255,276 in damages for pain and suffering caused by bullying. She worked in a primary school in Kildare.


This evening• My talk this evening is going to show1. you do not have to tolerate bullying 2. how to handle bullying at work3. what avenues are legally open to you for relief from bullying.


Pain of bullying

• The pain of bullying causes an enormous number of people in the Irish workplace real, gut wrenching distress.

• An ESRI study carried out in 2001 reported that 1 in every 14 workers in Ireland has experienced bullying.


Courts have recognised bullying

• Courts have recognised psychological/psychiatric injuries caused by bullying in a similar way to awarding damages for an employee suffering a broken leg or arm or other physical workplace injury

• A non physical injury arising from bullying can be more painful than a broken leg or bad back


We will look at

• 1. what is bullying• 2. what can you do about it-the remedies in

the workplace and outside• 3. 2 court cases to see the legal principles in

bullying cases in the Courts


1. What is workplace bullying?

• “Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying” from the Health and Safety Authority defines workplace bullying at work 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 this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.’


Examples of bullying behaviourThe 2007 code provides a non exhaustive list describing

patterns of behaviour which are examples of bullying.• undermining behaviour• exclusion with negative consequences• physical abuse• verbal abuse• aggression• excessive monitoring of work• humiliation• and more.


Bullying by who?

• Bullying can be carried out by supervisors, managers, subordinates, fellow employees, customers, business contacts or members of the public.


The HSA code

• It also describes the type of behaviour which does not fall within the definition of bullying.

• The code sets out guidelines for developing bullying prevention policies in the workplace and sets out the risk assessment procedures to be used in developing anti-bullying policies.


Not bullying• One off incidents• Harassment is discriminatory treatment of one

person by another because of a particular characteristic which is protected by the Employment Equality Acts 1998 to 2004 (for example age, gender, marital status, sexual orientation, religion, race, disability etc.)

• Reasonable and essential discipline in the workplace is not bullying eg an employee whose performance is continuously signalled as being below target is not a victim of bullying.


Bad/Unprofessional Management

• Management is not bullying• Management may be poor or unprofessional• I see many employees who complain about

bullying by management• But clarity is required here• This does a disrespect to the real victims of

bullying


Guidance for employers/HR people• The HSA code sets out detailed guidance in

relation to carrying out investigations of bullying in the workplace which must follow natural justice and fair procedures principles.

• The Code states that if the health and safety risk assessment flags up bullying as a potential problem in the workplace then the bullying prevention policy must be included in the Safety Statement of the business.

• Health and Safety website: www.hsa.ie

http://www.hsa.ie/


Bullying procedures

• The Code recommends dealing with cases internally through the following processes which are explained in the Code:

– informal resolution by a responsible person– a formal complaints procedure.

Only if the internal processes fail, should it be necessary to get outside support.


The outcome of a bullying complaint

the Code helps those involved to recognise the possible findings which result from the follow up and investigation of a bullying complaint where, 1. the complaint is upheld as bullying behaviour 2. the complaint is deemed to be unfounded as a bullying behaviour 3. the complaint is deemed to be vexatious.


Legal status of code

• Following the code is not obligatory• But the Code is admissible as evidence in

criminal proceedings under Health and Safety Act, 2005

• For an employer it is just smart and sensible to follow the code as it gives a great road map to dealing with bullying

• Cost effective also-claims, absenteeism etc.


Factors signalling bullying at work

• High turnover of staff, high absenteeism or poor morale

• Employment tenure – a bully may regard new, casual or contract employees as easier targets than permanent employees

• Hierarchies – hierarchies involving, for example, technical or non-professional employees working to professionally qualified employees which can sometimes present higher levels of bullying


Bullying signals cont’d.

• Changes in the workplace – workplace changes which can increase the risk include change in ownership, new manager or supervisor, introduction of new work performance measures or of new technology or internal re-organisation

• Poor management-no effective management system which respects persons and monitors and supports work relationships


Bullying signals cont’d.

• Personality differences – petty jealousies, personal biases

• Gender/age imbalance• Composition of the workforce• History of tolerance of unacceptable

behaviour• Inadequate procedures for dealing with

bullying in the workplace


Who bullies?

• Not definitive but those with..• poor communication skills, • difficulty in working with others, • difficulty in delegating responsibility, • poor organisational skills or • low self-esteem


Workplace Safety Statement

• Every employer has an obligation to prepare a safety statement (section 20, Safety, Health and Welfare at Work Act 2005)

• This should also refer to bullying as a potential health hazard in the workplace

• Just like any other safety hazard eg wet floor, dangerous machine, heavy loads


Safety Statement

• Should state the management ethos or attitude to the issue - a commitment to dignity in the workplace.

• clearly outline what bullying is• clearly outline the step by step procedure for

managing complaints• identify an informal and formal process,

depending on each complaint


Employees have a duty

• Employees also have a duty to prevent bullying• to behave and conduct themselves so as to

respect the right of employers and other employees to dignity, courtesy and respect at work

• to cooperate by providing any relevant information when an allegation of bullying at work is being looked into whether in an informal or formal stage.


Identifying bullying as a hazard at work?

• Has unacceptable behaviour been observed?• Have substantiated complaints of bullying

been made by employees?• Has HR or company doctor reported bullying?• Is sick leave above the norm with work related

stress noted?


Anti Bullying Policy

• Employers can use the template from the Health and Safety Authority to draft an anti bullying policy

• Also Labour Relations Commission‘s Code of Practice and

• Equality Authority‘s code of practice• Or have one drawn up by a professional HR or

solicitor


Anti bullying policy

• Should set out employer’s commitment not to tolerate bullying

• Should spell out the procedures to be followed to deal with bullying

• Should state that complaints will be dealt with sensitively and confidentially

• That person accused will be afforded natural justice


The Scope of the Policy

• Describe what is bullying • Give examples• Give the name of the person who can be

approached with a complaint• Assure that employees who complain will not

be victimised• It should state the role of management, trade

unions, employees in preventing bullying


Communication of the policy

• The policy must be communicated clearly to employees

• Training should also be provided to explain policy

• It should be reviewed regularly


Access to contact person

• Employees should have access to a “contact” person (and competent advisory services, if necessary in smaller organisations)

• The contact person has a listening brief and is not an advocate or judge

• Explains the policy and the procedure• Is first point of contact, after the bully• Complainant may not be comfortable

confronting bully


Procedures

• Informal• Formal


Informal procedure

1. Complaint-contact person is given authority by employer as “facilitator”; then a designated person (with training and expertise) should be assigned to specific complaint

2. Intervention-ascertain facts, present them to the alleged bully

Is mediation appropriate?


Informal procedure cont’d.

Record of all stages should be kept3. ClosureIf vexatious, can be progressed through disciplinary procedure


Formal process

• Formal process to be used if informal does not resolve or if bullying persists

• 1. Formal complaint• 2. Give information to the person complained

against• 3. Investigation-should be governed by terms

of reference, likely time scale, scope of investigation (is it bullying? Is the complaint upheld?)


Formal process cont’d.

• Written statements taken from all parties• The objective of an investigation is to

ascertain whether or not, on the balance of probabilities, the behaviours complained of occurred

• Investigation should be conducted by a designated member of management or an agreed, external, third party

• Person should have experience and expertise



• Investigation should be confidential and sensitive

• Both parties should be allowed have a work colleague or trade union rep. attend at meeting(s) with investigator

• Investigator to establish facts from the evidence/witness statements



• The investigation should be completed as quickly as possible, or to agreed timeframe

• Report should contain conclusions• The employer and both parties should be

given a copy• Employer should decide what action, if any,

should be taken and write to the parties



• Where complaint is upheld: this is a disciplinary issue and the disciplinary procedure should be followed

• It may also be appropriate to provide counselling to one or both parties

• Where complaint is not upheld: no victimisation against complainant..sympathy

• Malicious complaint? Disciplinary procedure


Appeals

• An appeal should be open to both parties at conclusion of the formal process

• Appeal should be heard by another person, preferably more senior

• Appeal should only focus on the specific grounds of appeal though-it is not a complete rehearing


Closure

• It may be necessary to try to have some type of reconciliation to restore working relationships

• These complaints/investigations can be divisive, hurtful and damaging to reputations and good name


Investigating Complaints-summary

• Not all complaints require investigation• Where investigation required the principles of fair

procedure and natural justice should be applied• All witnesses should be interviewed• Accused is innocent until proven guilty• Embarrassing for accused-employer should offer

support• Confidentiality should apply throughout


Do you feel bullied?

• Try to look at situation objectively• Is it really bullying?• Is it repeated unwanted, inappropriate

behaviour?• If you are feeling bad or a bit down it is easy to

misinterpret reasonable behaviour as bullying• Just because you feel unfairly treated or hurt

does not mean you are being bullied


Try to be objective

• Is it a personality clash?• Is it reasonable and justified criticism of your

behaviour/conduct?• Is the behaviour upsetting you for some other

(personal) reason?


What to do

• Tell the person that the behaviour is offensive and hostile

• Clearly tell them you want them to stop and enjoy a good working relationship

• If you feel you cannot do this make a note of the behaviour and bring it to the attention of a supervisor/manager/contact person

• Maintain confidentiality


Gather evidence

• Gather evidence, make notes, keep a diary• Check the workplace anti bullying policy• Report it to the contact person• Should be dealt with informally at first• Would mediation work?• Formal investigation should then be carried

out if necessary


Inadequate response?

• Contact HSA (the Workplace Contact Unit) (concerned with policy in the workplace)

• Contact Equality Tribunal (harassment)• Contact Labour Relations Commission

(mediation possible)• Contact solicitor


The Health and Safety Authority

• Its role is to monitor if employers and employees are complying with the 2005 act

• It can direct that the procedures in the Code be followed


2. Redress-remedies for the victim• Bullying does not have to be tolerated.

• There are a number of avenues of redress


a) Sue employer for breach of contract

The contract of employment will contain certain terms-express or implied-

that the employer will maintain your trust and confidence,

that he will take reasonable care for the health and safety of his employees,

that he will provide a safe system of work, that employees will be free in the workplace to

work free from bullying and harassment


Breach of contract?

•Failing to comply with these terms of employment leaves the employer open to a breach of contract claim


b) Personal injury claim• The employer has a general duty of care towards

his employees under the law of torts (civil wrongs).

• The employer may be guilty of the tort of negligence if you are bullied at work as he may not discharging his duty of care

• A claim for a personal injury arising from stress, bullying or harassment fit more naturally into the domain of tort law (civil wrong).

• This can be pursued as a personal injury claim.


Vicarious liability

• The employer will be held vicariously liable for the actions of his employee in the workplace

• So, even if the employer is unaware of the bullying he may still be held liable

• The bullying employee may not be a “mark” if you are successful anyway

• So you will nearly always bring claim against employer


PI claim goes to Injuries Board• There is a trend in taking non physical injury claims as

personal injury claims. However, the Injuries Board will not deal with it if it is a psychiatric/psychological injury and will simply issue an authorisation to pursue the claim through the Courts.

• So, you will need to bring legal proceedings in Court• If there are multiple causes of stress, damages may be

apportioned to try to reflect the underlying cause eg some stress arising from bullying, some stress arising for personal reasons


To win a personal injury claim-tests

• 1. Has the employee suffered an injury-not just occupational stress? For non physical injury claims the injury needs to be a psychiatrically recognised injury eg anxiety, post traumatic stress, depression

• A specialist psychiatric report will be required


Workplace to blame?

•2. If he/she has suffered such an injury, is the workplace to blame?


Forseeable?

• 3. If so, was the harm suffered by the employee reasonably foreseeable by the employer?


Duty of care

•4. If harm was forseeable, did the employer fall below the standard of the reasonable and prudent employer in addressing the needs of this employee?

•Did the employer act reasonably?


c) Health and safety• Broadly the employer's’ obligations can be

summarised under 5 categories including• Providing safe systems of work• Providing a safe place of work• Plant and machinery that is safe and fit for

purpose• Training and supervision• A duty of care in the selection of fellow

employees.


The Safety, Health and Welfare at Work Act, 2005

• sets out the broad framework of obligations and responsibilities imposed on employers and employees in the workplace in Ireland. The Act obliges employers to do everything reasonably practicable to ensure the safety, welfare and health of his employees.

• NOTE: “reasonably practicable” means• “that an employer has exercised all due care by putting

in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety and health…at the place of work..”

• This is not a 100% guarantee, though


Criminal prosecutions of employer• The Health Safety and Welfare at Work Act, 2005

provides for the criminal prosecution of offences.• Section 78 of the Health Safety and Welfare at Wo

rk Act, 2005 provides the penalties:

• (i) on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or

• (ii) on conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term not exceeding 2 years or both.

http://www.irishstatutebook.ie/2005/en/act/pub/0010/print.html



Personal liability for directors

• Section 80 of the act provides for personal liability for directors and officers of the company.



d) Unfair dismissal (constructive dismissal)

• The employee can also bring a case for constructive dismissal/loss of earnings if he/she leaves the employment because of the bullying, stress or harassment; however this should be one of the last options to exercise as the burden of proof in constructive dismissal cases fall on the employee.

• Can be difficult cases to win, though• In Riehn v Dublin Society for the Prevention of Cruelty

to Animals [2004] 15 ELR the employee resigned due to stress caused by an excessive workload and was awarded €30,000 in loss of earnings.

http://businessandlegal.ie/constructive-dismissal-in-ireland-what-is-constructive-dismissal


Other remedies

• A claim to Rights Commissioner service (now Workplace Relations Service) under Industrial Relations Acts 1967-2004


Venues to pursue claim arising from bullying

• Workplace Relations service• Employment Appeals Tribunal• Labour Court• Health and Safety Authority• Civil Courts.


Equality tribunal

• A non physical injury could be classified as a disability under the Employment Equality Acts.

• If that is the case a claim to the Equality Tribunal may also be possible for failure of the employer to make “reasonable accommodation” for the employee eg alternative role possible?


Warning for employers• Employers who do not have a workplace policy in place

dealing with issues like bullying and stress in the workplace will have a hard time defending claims made against him as it will be difficult to show that he has discharged his statutory obligations.

• An employer can potentially face civil and criminal proceedings for failure to provide a place of work that is free from bullying.

• The presence (or absence) of workplace policies is admissible in evidence in any civil or criminal proceedings when such a dispute comes before a Court or tribunal such as the Labour Court, Employment Appeals Tribunal or Rights Commissioner.


Employer’s liability

• Employer’s liability arising from bullying, stress, harassment claims arise:

• when the employer knew or ought to have known the workplace was unsafe or that the employee was at risk, and failed to do anything about it.


3. Case law-the legal principles applied by the Courts

• Ruffley -v- Board of Management St. Anne’s School, High Court, 2014

• Judge O’Neill referred to the definition of workplace bullying as defined in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

• “Workplace Bullying is 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 this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.


Ruffley v Board of Management St. Anne’s contd.

• “In Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. at 349, it was held by the Supreme Court that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work.

• “The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.””

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IEHC/2005/H71.html&query=title+(+quigley+)&method=boolean



Judge O’Neill

• “The plaintiff was subjected to a disciplinary sanction of a severe kind which was unmerited

• The manner in which the disciplinary process…was handled by Ms. Dempsey was grossly unfair to the plaintiff and utterly denied her the benefit of her constitutional right to natural justice and fair procedures.

• The conjuring up by Ms. Dempsey of the additional offence of failing to improve during the review process and of the “falsification” of the review forms was… irrational,.. It is hard to understand how an educated, sophisticated person, such as Ms. Dempsey, could arrive at such conclusions without an element of bad faith.”

• “I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.”


Repeated inappropriate behaviour over a period of time

• “Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”


An identifiable psychiatric injury?

• The need to prove that you have suffered an identifiable psychiatric injury is a critical proof to win your case for non physical personal injuries in Court


Judge O’Neill• “The plaintiff has given evidence to me… she began to

experience high levels of stress caused by what she perceived as the unfair treatment of her by the defendants, and in particular, Ms. Dempsey.

• from around March 2010, she was suffering constantly from headaches, insomnia, diarrhoea and high levels of anxiety.

• she eventually attended her General Practitioner…complaining of… headaches all summer, that she could not think straight, all related to a bullying issue at school.

• The General Practitioner put all this down to stress related to bullying.”


Judge O’Neill cont’d.• “I have no doubt that the imminent return to school after

the summer holidays had a heightening effect on her stress and anxiety at that time. On her return to school, a further episode with the Principal, Ms. Dempsey, occurred on 27th September 2009.”

• “This incident, in the ordinary course, would not have been of any great consequence, but for the plaintiff, it was the last straw. She felt she could bear it no more and found the stress of continuing in the school intolerable.

• As a direct consequence of this incident, the plaintiff felt she could no longer continue in the school and she went out on certified sick leave due to work-related stress.”


Judge O’Neill

• “Prior to 2009, the plaintiff had two previous episodes of Depression

• She required anti-depressive medication for these but she recovered fully on both occasions.”


Judge O’Neill cont’d.• the evidence of Dr. Byrne, a psychiatrist called for the plaintiff,

satisfies me in this respect, having suffered previous episodes of Depression, she was predisposed to further depressive illness.

• I am satisfied on the evidence of Dr. Michael McDonnell, her GP, and Dr. Byrne that the plaintiff suffered an Anxiety and Depressive Disorder resulting from her reaction to what had happened to her in St. Anne’s School from September 2009 through to September 2010.

• This resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and an inability to cope with everyday life. All of this rendered her incapable of returning to work in the defendants’ school, and all of that, allied to her fear that she would not have a good reference, inhibited her from seeking employment elsewhere. As a result, she has not worked since 27th September 2010.


Judge O’Neill

• She has been on anti-anxiety and anti-depression medication since late 2010, and she attended the Kildare Mental Health Services in Newbridge on a regular basis where she was prescribed anti-Depression medication. Her situation has not improved over the intervening period.


Judge O’Neill cont’d.

• An examination of her by Dr. McDonnell in February 2014…the results of which indicated she was suffering from a severe anxiety state and severe Depression. I think it probable that the impending litigation was, at that stage, worsening her symptoms, but that notwithstanding, there can be no doubt that she has, since late 2010, suffered from a significant anxiety and depressive disorder and that continues to afflict her.


Judge O’Neill

• Dr. Byrne’s evidence was to the effect that she has to continue with her medication and other forms of support and therapy which should enable her to recover her whole sense of personal safety and her sense of self-worth, and to enable her to have a feeling of control of her life. With all of that, she could look forward to a gradual reintroduction to a work situation.


Judge O’Neill

• It would seem to me to be probable that when this litigation is concluded, there is likely to be a significant improvement in her anxiety and depressive state. I would think it probable, having regard to Dr. Byrne’s evidence, that she will have the capacity, in due course, to return to fulltime, gainful employment.”


Judge O’Neill• “I am quite satisfied that the treatment of the plaintiff

throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.”

• “Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”


Identifiable psychiatric injury?

• “The next question to be considered is whether or not the plaintiff has, as a result of the conduct of the defendants, suffered an identifiable psychiatric injury as indicated in the passage from the judgment of Fennelly J. in the Quigley Complex Tooling & Moulding Ltd. case quoted above.”


Compensatory damages

• “I am satisfied that the plaintiff has suffered a definite and identifiable psychiatric injury from which she still continues to suffer significantly and will continue to do so for some time into the future.


Compensation• Therefore, she must be compensated for her pain and

suffering in that regard to date and into the future. • The appropriate sum to compensate the plaintiff for

her psychiatric injury to date is the sum of €75,000. Insofar as the future is concerned...the probability is that she will improve and go on to recover over time, ..With that in mind, in my opinion, the appropriate sum to compensate her for her psychiatric injury for the future is the sum of €40,000, making a total for general damages of €115,000.


Loss of earnings

• The plaintiff’s loss of earnings up to 6th March 2014 was agreed in the sum of €93,276.39.


Future loss of earnings & general damages

• In my view, the plaintiff is entitled to recover the foregoing sum, and as it is clear she will probably not be able to return to gainful employment for some time yet, is entitled to recover damages in respect of future loss of earnings. I think it probable that with appropriate treatment, she will be fit for such employment in the relatively near future, and accordingly, I would award her half the foregoing sum again in respect of future loss of earnings, namely, €47,000, making a total of €140,276 in respect of loss of earnings past and future.

• Accordingly, there will be judgment for the plaintiff in the sum of €255,276.(loss of earnings-present and future of €140,276 and general damages of €115,000) ”


Glynn v Minister for Justice Equality and Law Reform, 2014 High Court

• The claimant was a civil servant and worked in Gort Garda station in Co. Galway. Her claim was that she suffered stress as a result of pressure placed on her in 2005 to complete monthly accounts for the Garda station.


Occupational stress not actionable

• The High Court, Justice Kearns, observed:• “…..bullying, workplace stress and occupational stress

are all things which, conceptually at least, are quite different from each other, though on occasion they can overlap and coincide. Occupational stress is not actionable given that occupational stress is something which every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying.…”


Workplace stress can be actionable• The Court noted that workplace stress can be

actionable if certain criteria are met. However it is different from bullying insofar as it lacks the degree of deliberateness associated with bullying.

• “Workplace stress can also be the result of negligence where excessive demands are made of an employee or where complaints about shortcomings in the workplace go unheeded. It lacks however that degree of deliberateness which is the hallmark of bullying”.


Questions to ask

• The Court said the following question should be asked in relation to the claim of bullying:

• “whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress“


Questions to ask re bullying claim• It also referred to the legal definition of bullying set out in

Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17 of 2002) viz“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 this definition may be an affront to dignity at work but, as a once off incident, it is not considered to be bullying.”

http://www.irishstatutebook.ie/2002/en/si/0017.html




Objective test

• The Court noted that this definition required an objective test to decide whether bullying had occurred

• This means having the feeling that you are being bullied is not enough

• A third party must be of this opinion based on evidence


Had bullying occurred?• The Court referred to

Quigley v Complex Tooling and Moulding Ltd [2009] 1 I.R. 349 and the acceptance by the Supreme Court in that case of the definition of bullying or harassment at work as set out in S.I. No. 17 of 2002 above

• Justice Kearns observed that the relevant legal principles for workplace stress were laid down in Berber v Dunnes Stores [2009] E.L.R. 61 (which accepted the practical propostions set out in the 2002 case Hatton V Sutherland [2002] 2 All E.R.1).



http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IESC/2009/S10.html&query=title+(+berber+)&method=boolean


Once off incident, not repeated

• “the events upon which the plaintiff relies to mount her claim turn on the events of a few short days in May, 2005 a time span more identifiable with a once-off or single incident rather than the kind of ‘repetitive’ and ‘inappropriate’ conduct which constitutes the wrong of workplace bullying or harassment“.


A One Off Event

• The court concluded that the plaintiff had not made a case for bullying or workplace stress causing or contributing to foreseeable injury or damage. She had no complaints of workplace stress for the eight years between 1997 and 2005.


Questions?

•Then I will wrap up


Summary• Bullying is repeated, inappropriate behaviour

which could reasonably be regarded as undermining the individual’s right to dignity at work.

• Legal Remedies:• Breach of contract• Personal injury claim• Health and safety report• Constructive dismissal


Summary cont’d

• Personal injury claim proofs:• Recognised psychiatric injury eg depression,

anxiety• Caused by the workplace?• Was it foreseeable?• Did employer fail to act reasonably in

discharging duty of care?


What to do now

• Don’t tolerate bullying in work• Seek professional advice• Use the internal procedure in the workplace (if

any)• Seek medical help, if necessary• Seek legal advice, if necessary


Contact

• Terry Gorry & Co. Solicitors• Main Street• Enfield• Co. Meath• [email protected]• 046/95 49 614 or 086/81 21 797• http://BusinessAndLegal.ie • http://EmploymentRightsIreland.com

mailto:[email protected]

http://businessandlegal.ie/

http://employmentrightsireland.com/