Legal Implications of Bullying at Work
The Health Safety and Welfare Work Act requires employers to manage and conduct workplace activities so as to avoid and prevent the occurrence of improper conduct and behaviour, which would adversely affect the health, safety and welfare of employees.
Bullying in the workforce raises a range of issue, ranging from health, safety and welfare, industrial relation issues and disciplinary and grievance issues for alleged perpetuators. An employer’s obligations in respect of bullying reflect his general obligations in respect of the health, safety and welfare of its employees. The employer must identify workplace risks generally, including the risk of bullying.
There have been some cases where employees have been awarded compensation for nervous breakdown, following prolonged bullying. This employer’s liability may be based on failure to respond to obvious signs, failure to implement policies and respond to complaints. Liability may arise where a diagnosable condition arises, such as post traumatic stress disorder and nervous breakdown.
Harassment and intimidation may constitute offences under the general criminal law. See generally the sections on harassment and non-fatal offences against the persons. Harassment which is persistent and constitutes a serious interference with peace and privacy causing alarm, distress or harm constitutes an offence where a a reasonable person would realise it to be so.
Nature of Bullying and Harassment
Bullying tends to be repetitive inappropriate behaviour. It is usually such that it undermines the target’s dignity. It may comprise of implied threats, offensive language, jokes, emails, graffiti, obscene and offensive material. It may range from harassment, abuse, verbal insults, but also isolation exclusion.
Bullying may be direct or indirect. It is usually aimed at one or more persons. It may arise from conduct on the part of one or more persons. It may emanate from the employer. This may entail excessive work, impossible, assignments, deadlines and tasks which adversely impact on a person. The employer may be vicariously liable for the conduct of its employees
Bullying may involve harassment on personal grounds. It may be based on sexual orientation, gender racial or ethnic origin. Bullying and harassment may arise from the exercise of rights. It may or constitute victimisation for which recourse is afforded under legislation.
The HSA charter commits employers who adopt it, to encourage and support the rights and dignity of persons at work. Persons are expected to respect each others’ dignity. Bullying is not to be accepted or tolerated. The charter has no independent status as such, but it does reflect legal principles.
Harassment is closely related to bullying. It is unacceptable in the workplace. Harassment is a subject to equality legislation which may be breach where the person harassed is in one of the protected categories and is harassment for this reason. Bullying is not linked to membership of this class or limited in any way.
LRC Code of Practice on Bullying at Work
The Labour Relations Commission, now the Workplace Relations Commission has published codes of practice for the purpose of addressing bullying in the workplace. The Codes must be taken into account, in legal proceedings.
A Code has been made under the Health, Safety and Welfare at work Act on the prevention and resolution of bullying at work. It is admissible in civil and criminal proceedings. Breaches is itself evidence of an offence under the legislation. The Equality Authority’s code of practice on sexual harassment and harassment at work made under the Employment Equality Act is also relevant .
The Health and Safety Authority code on bullying gives guidance on the prevention of bullying. The code gives instances of bullying including aggression, humiliation, intimidation, abuse undermining and insults. It provides for prevention policies, which identify bullying and put forward mechanisms to deal with it.
Identifying Bullying I
The HSA’s code requires identification and risk assessment in relation to possible bullying. It lists examples of behavioural patterns, which may constitute bullying. Humiliation, threatening behaviour, abuse, manipulation of job content and targets, undermining behaviour, aggression, blame for things beyond the employee’s control, treatment less favourable, withholding work related information resulting with negative consequences, verbal and insults.
The HSA code refers to the possibility of bullying arising in a wider range of contexts. This included employer to employee, employee to manager/employer, employee to employee and customer/client to employee. It mentions certain features as indicative of bullying risk including
- high staff turnover;
- relationship of long-term tenured staff with short-term / contract staff (being easier targets);
- hierarchies of technical and non-professional employees working to professionally qualified employees;
- changes in the workplace including new managers and supervisors;
- lack of an effective management system which respects and monitors workplace relationships;
- personality differences, biases, taking advantage of vulnerability;
- age or gender imbalance
The HSA has identified certain groups, who can be vulnerable to bullying including
- those of different national, racial or ethnic origin;
- those of different religious or political beliefs;
- those of different physical characteristics;
- former prisoners;
- members of different unaccepted trade unions (whether by colleagues or employer);
- those who lack education, unduly shy, or suffer from a physical disability;
- those unwilling to complain;
- those willing to challenge harassment leading to possible victimization
Anti-Bullying Policy I
The code emphasises that prevention is the best method of avoiding bullying at work. There should be an effective policy, to which strong employer commitment is given. The object should be, not only to prevent improper conduct, but also to encourage best practice and a safe or harmonious workplace, where such behaviour is unlikely to occur. Where the risk of bullying has been assessed, preventative measures should be embodied in the safety statement.
The anti-bullying policy and any associated procedures, should be adopted after consultation and negotiation. It should be signed and dated by persons at a senior level, so as to show commitment on the part of the organisation. The procedure should be put in place and takes the consultation with the employees and safety representatives. The policy should be clearly communicated and must be implemented.
Records of monitoring should be taken and kept as appropriate. Training may be necessary. Complaint resolution procedures should be provided and followed. The procedure should be put in place and takes the consultation with the employees and safety representatives
Anti-Bullying Policy II
All employees have the right to be treated with dignity and respect. Bullying within the organisation should not be tolerated and should be the subject to disciplinary procedures. Complaints of bullying, should be the subject of natural justice and a fairness in investigation. They should be treated with sensitivity, respect and confidentiality. Unfounded and vexatious complaints should be themselves the subject of discipline procedures.
Employees have a duty to contribute to, and abide by the policy. Human resources policies and practices should seek to prevent bullying. The policy should be updated from time to time, reflecting experience to date. Lists of indicative bullying behaviour, which may be relevant to the particular employment, should be set out. The policy should show a clear commitment to take bullying seriously.
The policy should seek to identify bullying. Persons who made complaints, should not be victimised. A contact point should be provided for complaints. The procedures to be followed should be explained. Awareness of the policy should be promoted. Management should provide good example by treating all persons in the workplace with respect.
Anti-Bullying Policy III
The applicable procedures should be followed in the event of a complaint. Management should monitor the workplace for signs of bullying directly, and through contact and feedback from employees. Allegations should be dealt with sensitively. A person should not be victimised for complaining.
The policy should be communicated to all persons in the workplace including employees, clients, business contact. It may be done by appropriate media including leaflets, emails, websites and handbooks. Training may be appropriate.
The code of practice recommends that the summary of the policy should be permanently displayed, where appropriate and as identified in the risk assessment. This may include the workplace or places which customers or clients attend.
The HSA has published internal dispute resolution procedures for cases of bullying. Beyond this, the Workplace Relations Commission might be exceptionally called upon to assist in small organisations, with limited internal resources. If the complaint is made by or against a senior person, an independent professional conciliation, assistance may be required.
Exceptionally in larger organisations, outside agencies such as the WRC may be required to assist resolution. Where there is no conflict of interest, the matter should be resolved informally and internally.
The HSA is not the appropriate body to deal with bullying or complaints of bullying in the normal course. However, in exceptional cased, the HSA could itself deploy its safety, health and welfare protection powers.
The courts have found employers liable for damages in accordance with negligence principles, in some cases. As with employer liability generally, it may be directly liable for negligence in failing to monitor and for the actions and inactions of directors and senior management. Employers are more commonly found vicariously liable for the actions of their employees.
An employee may be justified, in resigning if the circumstances are exceptional and intolerable,, by reason of harassment or bullying. In exception circumstances, the employee may be deemed to be constrictively dismisses.
The employer may be found liable for failure to have and to implement a process, thereby causing loss and damage to the employee. See the articles on civil liability for bullying in the workplace. The employee may be liable for direct failures and breaches of duty. Less commonly, the employer may be vicariously liable for the acts of fellow employees.
There have been some cases where persons have been awarded compensation for nervous breakdown, following prolonged bullying. This employer’s liability may be based on failure to respond to obvious signs, failure to implement policies and respond to complaints. Liability may arise where a diagnosable condition arises, such as post traumatic stress disorder and nervous breakdown.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 10
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella Ch 6
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks Ch 6
Civil Liability for Industrial Accidents 1993 While
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Forlin
Health and safety at work: European and comparative perspective Ales.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)