Bullying/Harassment in the Workplace

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Bullying/Harassment in the Workplace

The Caselaw of Bullying in the Workplace

Maher v. Jabil Global Services Ltd [2008] test.

This High Court case is the leading Irish authority since Clarke J. articulated a three stage test for assessing whether recovery lies in a case of workplace stress which has since been applied in subsequent cases. This Judgment handed down in 2005 is an important example of a case where the plaintiff failed to establish reasonable foreseeability on the part of the employer. The Plaintiff failed to satisfy the foreseeability test. Whilst the work was regarded demanding for Plaintiff there was no evidence to suggest that it was reasonable for the employer to infer this. The demands were not unreasonable in comparison to other people in comparable jobs. The Court was satisfied that he had suffered personal injury which was caused by his work environment but the injury was not foreseeable.

In Maher the Court reiterated as per the McGrath* case the importance of an objective analysis of the treatment complained of (as opposed to the Plaintiff`s own subjective views of that treatment). The Court concluded the Plaintiff had failed to establish a breach of duty of care on the part of his employer.

Clarke J. was satisfied that the starting point for consideration of liability and establishing negligence in such a case was the consideration of three questions:

Has the Plaintiff suffered an injury to his/her health as opposed to what might be described as ordinary occupational stress?
If so, is that injury attributable to the workplace?
If so, was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.

It appears that Maher is representative of how difficult it is to prove the foreseeability of injuries caused by bullying, harassment and intimidation in the workplace.

The foreseeability question came up for consideration again in High Court Judgement of:

Shortt v. Royal Liver Insurance Ltd.[2008] IEHC 332 (21 October 2008, unreported) HC (Laffoy J.)

In that case the Plaintiff claimed damages for stress arising from a disciplinary inquiry which he alleged was unfairly conducted. Laffoy J. rejected the claim and stated that stress in such circumstances is an ordinary consequence not amounting to an injury over and above medically recognised occupational stress or psychological injury. Even if the Plaintiff`s stress was recognised as a psychological injury this was not reasonably foreseeable. Judge Laffoy emphasised that an employer is entitled to assume that an employee is able to withstand such stress. In this case ‘management were not aware of the problem. Furthermore there was no reason why the management personnel ought to have known the Plaintiff was vulnerable or likely to succumb to psychiatric or psychological injury because of the implementation of the disciplinary process’.

Quigley v. Complex Tooling and Moulding [2008] ELR 297

This Supreme Court Appeal is one of the leading Irish cases. The Judgment in this case emphasises the problems which Plaintiffs face in endeavouring to establish the second limb of Clarke J.’s test in Maher.

The Plaintiff`s complaints of bullying and harassment were upheld and the employer was found to have been in breach of its duty of care to him. Interestingly however the Plaintiff failed to establish the crucial causal link. The late Mr. Justice Lavan in this case relied upon the existing Health and Safety legislation and also the 2007 Code of Practice (amending the 2002 Code) in finding that the Plaintiff had been subjected to ‘a campaign of bullying which had repercussions on the mental health of the Plaintiff for which the Defendant was liable in damages.

On appeal the Defendant employer claimed the medical evidence did not bear out the Plaintiff`s complaints of bullying, and secondly that there was insufficient evidence of a causal link between the bullying (which was accepted) and the depressive disorder which was diagnosed by the Plaintiff`s doctor. Mr. Justice Fennelly J. found there was no medical evidence of a link with the harassment that was consistent with the Plaintiff`s own evidence. The Plaintiff complained about stress but not bullying. Consequently the Plaintiff failed to discharge the burden of proving that his depression was caused by his treatment during his employment. On this second ground of appeal the employer was successful. The writer is respectfully of the view this was a harsh distinction to make but it is noteworthy the relevant medical report did not record the Plaintiff had been bullied or harassed at work. This was a significant factor in the Judge`s determination.

Fennelly J. accepted the submission that bullying must be repeated, inappropriate and it must undermine the dignity of the employee at work. The Judge was satisfied that the Plaintiff amply met these three criteria on the basis there was evidence the Plaintiff received unfair criticism, inconsistency and a lack of response to his complaints from the employer, and that “ he was forced to endure insidious silence “. Thus employer’s first ground of appeal was rejected.

Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002

Para 5 defines bullying in relevance when considering the employer’s duty.
The definition as being:

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.

Berber v. Dunnes Stores Ltd. [2009] IESC 10, (12 February 2009) SC.

In this case it was held that the Plaintiff had fulfilled all the criteria of the Maher three limb test. Ms. Justice Laffoy upheld the Plaintiff`s claim, but the employer successfully appealed to the Supreme Court.

On appeal the Supreme Court held the claim failed on the basis of a lack of foreseeability. The contrast between the approach of the High and Supreme Court illustrates the great difficulties involved in predicting the outcome in cases such as these.

*McGrath v.Trintech Technologies Ltd.[2005] 4 IR 382.

In this case the Plaintiff claimed he had suffered stress as a result of the manner in which he had been treated by his employer during his placement in Uruguay. Ms. Justice Laffoy accepted that the Plaintiff had suffered from a ‘recognisable psychiatric illness’. However the Plaintiff`s case again failed in relation to the foreseeability test. Laffoy J. held that the fundamental test was whether the Defendant employer fell below the standard to be properly expected of a reasonable and prudent employer and concluded that the Defendant employer in this case did not, having done what was reasonable in the circumstances. This is known as the “objective stance”.

The most recent judgment is the case of:

Sweeney v. The Board of Management of Ballinteer Community School [2001] IEHC 131

Mr Justice Herbert found on the balance of probabilities that the Plaintiff had discharged the onus of establishing that she did suffer a psychiatric illness, in the form of clinical depression, and that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C., who was the principal in the Community School where she was employed. The Judge held that Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the Plaintiff carried a materially substantial risk of the Plaintiff suffering a mental injury as a result and should by the exercise of reasonable care have avoided that outcome. There was a history of occupational stress and this should have put Dr. C. on notice that the Plaintiff was vulnerable to some form of mental injury if subjected to further stress. Herbert J. thus found it to be reasonably foreseeable.

This case also dealt with the issue of vicarious liability in that the Board of Management of the school were found to be vicariously liable for the actions of Dr. C.. It was further held the Board owed the Plaintiff a direct duty of care to take reasonable care to prevent her suffering mental injury. The Board of Management ought to have known that the Plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C. and that she would suffer some form of mental illness. The Board failed to act as a reasonable, careful and prudent employer, hence permitting the continuous bullying and harassment of the Plaintiff by Dr. C. which continued as a result of which the Plaintiff suffered and was diagnosed with clinical depression.

Mr Justice Herbert stated:-

‘It is well established in this jurisdiction, both at common law and now by Section 15 of the Employment Equality Act 1998, that even if the Board of Management of BCC did not know or could not reasonably have known (which was not the situation in the present case), that the Plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C., once those acts were committed by him within the scope of his employment.’

Significantly Herbert J. held that in the circumstances the Plaintiff had not established on the balance of probabilities that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C. In other words he made a distinction between the clinical depression diagnosed and post traumatic stress disorder which is a condition separately recognised by the Courts.

However Herbert J. found that the behaviour of Dr. C. towards the Plaintiff was oppressive and arrogant and caused her additional hurt and insult. He therefore considered that it was appropriate to mark his abhorrence of such conduct by making an award of aggravated damages.

Herbert J. awarded damages to the Plaintiff for the personal injuries she suffered in the sum of €60,000 of which the sum of €5,000 represented the increased amount of compensatory damages. She was awarded additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. There were special damages in the amount of €13,625.

It is suggested this case illustrates the importance of early intervention in dysfunctional interpersonal working relationships. It demonstrates a need for appropriate procedures to be in place and to be applied (for example as part of a bullying procedure there must be an investigation, a report and then a result). The case highlights the importance of the detail in the medical evidence obtained in order to clearly establish the causation of any psychiatric illness diagnosed. (Similarly the medical evidence must detail the bullying/harassment occurred at the place of work as per the second stance of appeal identified in Quigley.)

It is absolutely vital for an employer when on notice an employee is suffering from work related stress to attempt to manage the situation appropriately from the earliest possible moment. Early intervention is crucial.

There was a second issue in the Sweeney case which was the existence of sick note. This note emphasised the Plaintiff’s stress was from the Plaintiff`s work. This was regarded as important evidence in establishing the causative link.

In summary it has to be recognised that whilst the Courts in this jurisdiction take bullying in the workplace very seriously, particularly given the legislation that has come into effect in the last 5 years, bullying cases are difficult to prove and each case must be treated on it’s own facts.

For more information regarding bullying claims please contact our office on 180938893 or email us on info@cmhaugheysolicitors.ie or complete our online contact form for an immediate call back.

Immediate Callback from a Solicitor or Freephone: 1800 93 88 93

C.M. Haughey Solicitors, Christchurch Hall, High Street, Dublin 8, Tel (01) 421 4220, Fax (01) 454 8338

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

*This statement is made in compliance with Reg. 8 of the SI 518 or 2002.