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Home / ... / Harassment, Bullying and Stress – The Legal Issues

With increasing awareness of the social and economic consequences flowing from bullying and harassment the introduction of measures to safeguard workers has become more critical for employers both as a matter of good management and to limit liability under health and safety, industrial relations and equality legislation.

A survey carried out in 2000 by the European Foundation for the improvement of living and working conditions in the 15 Member States of the European Union reported that 9% of workers reported being subject to intimidation in the workplace and 2% of respondents reported sexual harassment. In an ESRI study carried out in 2001 it was reported that 1 in every 12 workers in Ireland has experienced bullying.

This issue came to the forefront recently where an employee in the UK was awarded approximately €1,200,000 for bullying in the workplace.

There have been reports that a specialised bullying tribunal will be set up to deal with this whole area and the recommendations of a report of the Expert Advisory Group on Workplace Bullying (2005) supported the establishment of such a forum.

BULLYING AND HARASSMENT

Bullying and Harassment are often classed together but legally they are distinguishable. Workplace Bullying has been defined (in a Taskforce report dated 2001) 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”.

The key element of this definition is that it emphasises that the bullying actions must be repeated and states that a one off incident is not considered to be bullying. The type of bullying reported in the Deutsche Bank case (described below) seemed to be of a petty nature – where co-workers made undermining comments – yet the effect on the employee concerned was catastrophic personally.

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.) There are many legal remedies where employees feel they have been bullied or harassed – for example: a Rights Commissioner claim under Industrial Relations Acts 1967 – 2004, Rights Commissioner claim under Safety Health and Welfare at Work Act 2005, claim for constructive dismissal under Unfair Dismissals Acts 1977 to 2003 and increasingly these cases are being taken as personal injury cases in the Civil Courts.

RISK FACTORS Factors which can lead to employee vulnerability to bullying or harassment can include:

(a) where there is a pre-existing medical condition which triggers a duty on the part of the employer to ensure that the workplace does not expose that individual to unnecessary or excessive risks; (b) where working hours are excessive; (c) where work pressures are significant and unreasonable (including pressures from workplace systems, clients and co-workers); (d) workplace constitution including part-time or non permanent employees may be an increased risk factor for bullying at work. Obviously the increasingly multi-cultural nature of society may increase the risk of racial or religious harassment.

PERFORMANCE MANAGEMENT

It is increasingly common for managers to find that they are accused of bullying when they carry out routine management of employees. While no workplace can permit a situation where managers cannot effectively manage, there are ways in which this risk can be reduced, including:

(a) Having proper systems in place for reviews which are established using objective standards; (b) Involving non-direct line management in performance appraisals where practical or providing a right of appeal; (c) Training of managers.

COURSE OF EMPLOYMENT

An employer may be liable even if the harassment takes place outside of the work environment.

A code of practice issued by the Equality Authority suggests that the scope of the protections under the Equality Acts extends past the workplace and would include work-related events (although the position of work-related social events is not clear).

In the 2002 case of Maguire v North Eastern Health Board, the Equality Tribunal held the employer liable for discriminatory comments made to an employee at a Staff Christmas Party.

In Ms O’N –v- An Insurance Company (1) the complainant employee claimed that she has been sexually harassed in a nightclub following a Sports and Social Club pub-quiz. The employer had sponsored a free bar during the pub quiz and at the night club. The Equality Officer drew attention to the Equality Authority’s Code of Practice but held that the harassment took place at an event which the employee did not attend for “the purposes of or in furtherance of work”.

WORK RELATED STRESS

In some recent cases where employees claimed damages for work related stress both in the UK and Ireland guidance was given by the Courts to employers as to how to manage these kind of cases and to provide a safe working environment to employees.

In the Deutsche Bank case Helen Green sued her employer, Deutsche Bank, alleging that her employer had failed to protect her from bullying and abusive treatment from other female employees. This treatment in turn drove her to a nervous breakdown.

Ms. Green claimed she was verbally abused and ignored to the point where she would sit at her desk crying. She was made to feel uncomfortable by “crude and lewd comments” and her colleagues would remove her name from circulation lists, hide her post and remove papers from her desk. The company paid for stress counselling and assertiveness training. Nonetheless, Ms. Green suffered a nervous breakdown and was admitted to hospital and placed on suicide watch. She returned to work, following a five month period on sick leave, but she suffered a relapse. The High Court in London held that Deutsche Bank failed to take adequate steps to protect Ms Green from the behaviour. Management were aware of the problem. The judge commented that “a reasonable and responsible employer would have intervened as soon as he became aware of the problem….The management was weak and ineffectual. The managers collectively closed their eyes to what was going on, no doubt in the hope that the problem would go away.” Ms Green was held to have been subject to relentless campaign of mean and spiteful behaviour designed to cause her distress.

Quigley v. Complex Tooling and Moulding

An Irish decision which focused on employer’s liability for stress caused by workplace bullying was the case of Quigley v Complex Tooling and Moulding .

Mr. Quigley was awarded in excess of €75,000 for psychiatric injury suffered by him as a direct consequence of his employer’s breach of duty to prevent workplace bullying. Mr. Quigley claimed that he was subjected to a campaign of harassment, bullying, humiliation and victimisation. He gave evidence of having been subjected to excessive scrutiny and unfair and unreasonable treatment, by management. Mr. Quigley claimed that despite frequent complaints about this behaviour, the company failed, refused or neglected to take any reasonable steps to prevent or stop it.

McGrath v. Trintech

In McGrath v Trintech Mr. McGrath claimed damages for personal injuries, which he alleged he suffered as a result of occupational stress. He argued that the defendant employer was in breach of its obligations pursuant to the Safety, Health & Welfare at Work Act. While the judge ultimately found against Mr. McGrath on this point, she had no difficulty with the argument that the Safety, Health & Welfare at Work Act covers psychiatric health and psychiatric injuries.

Maher v. Jabil

In the case of Maher v Jabil Mr. Maher claimed damages for stress arising from one period of alleged over work and one period of alleged under work. He failed on both counts, again despite the Court being satisfied that he had suffered personal injury, which was caused by his work environment. The key issue for the Court was the forseeability of his suffering the damage to his health.

LEGAL LIABILITY

An employer’s liability for claims relating to bullying, harassment and stress can be summarized as arising when an 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.

An employer is not liable for effects on employees which are not reasonably foreseeable but where an employer is on notice that a particular employee is pre-disposed to stress related conditions; has raised concerns about other employees or work situations, or that because of the make up of the workplace that there was an increased likelihood of discrimination then it should take steps.

SUMMARY

To assist in protecting itself against claims arising from bullying and harassment, an employer should take measures (as suggested below): 1. Review systems – introduce dignity at work policy and implement it with training as required; Develop a bullying and harassment policy and ensure that it works and is understood. 2. Carry out risk assessment for Heath & Safety purposes but consider issues such as work systems, workplace constitution etc. 3. Ensure that the IT usage and communication policy is adequate – it should proscribe all harassment by electronic means (to include mobile phone texting etc). 4. Training of managers is key – managers must know how to carry out an objective performance appraisal and the employer should ensure that the performance management system allows a right of appeal. 5. Provide human resources support to managers in dealing with employees and also in defending their management process against allegations of bullying; 6. Keep work pressures and work hours under review; 7. Introduce some form of employee assistance programme to assist with personal issues; 8. Allow employees an effective “voice” and a method by which employees can refer grievances; 9. Finally, if a stress claim is received refer to insurers promptly as it is an employer liability claim to be dealt with in the same way as other physical injury claims.

Notes 1 2004 DEC E2004-052

Maura Connolly is a Partner and Head of the Employment Law group at Eugene F Collins.

This information is very informative. I am grateful that I can give my perspective in reference to bullying, harassment, and stress on my job, and not be made to believe that it isn't important that I was humiliated. I will continue to get assistance. Thankyou

I found this article quite helpful. especially when cases were cited. thanks.

Im a mature, part time student doing a Business Degree Honours course, doing some work around bullying etc, found your article helpful. Thanks Terry Murphy