Bullying

Informal Process

The informal procedure seeks to deal with the matter in a low-key manner, without unnecessary escalation. The purpose of the informal procedure is to establish whether an agreement can be reached to bring an end to the behaviour.

There should be a contact point for persons who feel they have been bullied. This may be a colleague or a line manager, whose assistance can be called upon, if necessary. The contact person does not act as an advocate for the complainant. He is to hear the complaint and give guidance in relation to the procedures available under the internal policy. He may assist the complainant in raising the issue with the alleged perpetrator.

Where the internal procedure is to not sufficient to resolve the complaint, Workplace Relations Commission services are available to review the internal procedures or carry out a new investigation.

Formal Process

The complainant may proceed with the formal procedure either initially or after the informal procedure has failed to resolve the matter successfully. The employer should appoint a person at the appropriate layer of management to deal with the matter. Where the complaint is made against a senior member of the organisation, it may be necessary to have recourse to external bodies such as the mediation services of the Workplace Relations Commission.

The formal procedure requires the complaint to be made in writing and signed by the complainant. The person complained against should be notified in writing. A formal investigation should take place pursuant to the internal anti-bullying policy. An appeals procedure must be available.

Civil Liability

Occupational stress, bullying, and harassment raise issues of civil liability for employers, as well as issues of health, safety, and welfare legislation compliance.  Breach of much of the legislation constitutes an offence which can be enforced by administrative notices and ultimately by the prosecution, fines, and even imprisonment. The legislation is enforced by the Health and Safety Authority.

An employer has duties to employees under the law of tort (civil wrongs). This includes a duty to create a safe system of work and working environment. This may also be an express or implied term of the contract of employment. An employer is liable for the civil wrongs committed by his employees. The effect of these principles is that there is a high risk that an employer may be held liable to an employee for bullying and harassment by fellow employees.

The courts, in England and in Ireland, have recognised that the employer’s liability extends to psychiatric injury, typically arising from stress or bullying in the course of employment. The courts have found employers liable for negligence and breach of duty as a result of bullying, on the same general principles as apply in the context of stress.

If  distinct diagnosable mental injury arising from occupational stress caused  by harassment or bullying is reasonably foreseeable, then the failure by the employee to take countermeasures may constitute negligence / breach of duty.

Liability Basis

Under general principles of negligence, the employer has a duty to provide a safe system of work. The employer has statutory obligations in relation to workplace health, safety and welfare. These duties are highly relevant in the context of claims based on bullying and work-related stress.

The employer may be liable for its own failures, for system failures or it may be liable vicariously for the acts of fellow employees. Where an employer is, or should be aware of workplace matters, which have a potential effect on mental health, it is under a duty to take steps to deal with them and to protect the safety and welfare of its employees.

The employer may be liable for bullying on the part of other his employees, as a failure to provide a safe system of work or under principles of vicarious liability.   An employee may be found to have breached his duty where he fails to take steps to prevent bullying on the part of others.

The combined effect of these principles is that an employer may be held liable to pay compensation for the effects of a psychiatric injury caused by workplace stress as the result of bullying and harassment of the employee by a fellow employee or by a member of the public.

Bullying

Bullying consists of systematic and repeated aggression, both psychological and physical, conducted by an individual or group against one or more persons.  It can range from physical aggression to offensive words materials, isolation, workloads. A failure by an employer to take steps to against such conduct occurring may leave him liable to a claim for damages for the mental distress and illness caused.

The courts have recognised the definition of workplace bullying in the HSA Code. The HSA Code of Practice does not have the force of law, but it is taken into account in civil cases where damages are sought for alleged bullying and harassment at work. Many key parts of the Code, has been accepted by the Irish courts in deciding upon civil cases.

The HSA code defines bullying as repeated inappropriate behaviour, verbal or physical, direct or indirect, conducted by one of more persons against another or others at a workplace on the course of employment, which could reasonably be regarded as undermining the person’s right to dignity at work.  An isolated incident maybe an affront to dignity, but would not be considered bullying.

Instances

Bullying at work may lead to or may aggravate stress.  An employer might cause or aggravate stress induced by bullying, intentionally or unintentionally. It may be liable for breach of its duty to take reasonable care for the employee’s safety and its statutory duty to provide a safe working environment.

Negligence may be found where there has been a failure to respond to a bullying complaint, insufficient supervision or where bullying is permitted and tolerated as part of the culture.

Stress and Injury may arise by reason of bullying and harassment from fellow employees. This raises issues in relation to both the primary and vicarious liability of the employer.

In other cases, the bullying or harassment may come from management so that it is deemed the action of the employer itself, whether a personal employer or the controllers of a corporate employer.

Breach of duty and liability has been found in cases of unique supervision, excessive scrutiny, unfair criticism, inconsistency, lack of response to complaints, and insidious silence. It has also been found where an employer fails to address harassment by third parties.

High Bar to Claim I

There are significant hurdles to success in a civil claim for damages for bullying or harassment. There must be a demonstrable breach of duty. In some cases, employees have shown depression and psychological illness but have not been in a position to show that it was caused by the alleged workplace bullying.  Unless the employer is vicariously liable, it may not have been aware of the employee’s vulnerability.

Mental injury is more difficult to foresee than physical injury. Generally, an employer is entitled to assume that the employee can deal with the normal stresses of the job. If, however, the employer has knowledge or ought to have knowledge of the particular employee’s circumstances which show heightened risk, the duty to take steps to alleviate that risk may arise.

It must be shown that it was the employer’s negligence or breach of duty which caused the loss or damage. In some cases, employees have shown depression or psychological illness, but have not been in a position to show that it was caused by the bullying.

High Bar to Claim II

Mere unpleasant stress and distress are insufficient for the purposes of common law damages. Although damages will not be awarded for distress in itself, the circumstances and level of distress and humiliation may be relevant to the award of damages in a case where it is accompanied by loss or damage which is recognised at common law

However, mere stress and humiliation alone would not constitute sufficient loss or damage for the purpose of compensation at common law. There must be a demonstrable psychological effect or condition. There may be implications under Health Safety and Welfare legislation.