How should you, as an employer, deal with a complaint of bullying? In the decision of Catherine Hurley v An Post  IEHC 568, Mr Justice McDermott helpfully outlines the duties an employer owes to its employees who have allegedly been bullied by their co-workers.
Mrs Hurley’s claim related to alleged bullying by her co-workers after an incident at work in July 2006.
On 26 July 2006, Mrs Hurley asked a colleague, Mr J, to pass an item to her. She alleged that he became aggressive and came nose to nose with her. She stated that she was shaking with fear and that she thought he was going to assault her. Mrs Hurley met her supervisor immediately afterwards and filled in an incident form. Another employee, who witnessed the incident, drove her home.
Mrs Hurley returned to work on the 15 August 2006 at which point Mr J had been suspended. On her return Mrs Hurley alleged that she greeted her fellow employees and it was as if she had not spoken. Later in the day a fellow colleague suggested that “she should not give into the atmosphere … and she should stick it out”. When she went for her break her colleagues sat separately from her and did not speak to her. The following day she spoke to the Human Resources Manager and gave him full details of what was happening. He advised her that it would “die down”. Three weeks later Mrs Hurley complained to another supervisor. She felt that she was being ignored by 75% of her colleagues; that doors were being closed in her face; small incidents were occurring such as pens going missing and that she had not been welcome to attend the staff Christmas party.
Mr J had a history of disciplinary issues of which Mrs Hurley and, as later transpired, many of her co-workers were unaware. Following the incident with Mrs Hurley, Mr J was advised that he was to be suspended. He refused to leave the premises and the Gardaí were called. Following further incidents, a decision was taken not to allow Mr J on site and the assistance of the Gardaí was required on further occasions. A petition was then signed by 96 of the 132 staff expressing their disgust at the treatment of Mr J and on the 1st of August 2006 staff members took unofficial action without notice to management.
Mr Justice McDermott was satisfied that “the high level of resentment was also reflected in the staff’s treatment of Mrs Hurley when she attempted to return to work”.
During 2006 and 2007, Mrs Hurley was absent from work on a number of occasions which were attributed to the incident and work related stress. Mr Justice McDermott was satisfied that management were fully aware of the continuing isolation and stress to which Mrs Hurley was subjected to by her co-workers and its effect on her health. While Mrs Hurley attempted to deal with the situation, no efforts were made by management to engage with her or to caution the workforce as to their treatment of Mrs Hurley or advise that such treatment could lead to disciplinary action. Later, it was alleged by the employer that Mrs Hurley failed to make a written complaint in accordance with the Company’s Code, however, Mr Justice McDermott felt that this completely disregarded the advice being given to Mrs Hurley by local management, that the treatment would likely cease.
Mrs Hurley was absent for a further period in 2008. During this time the medical evidence stated that a spasm to her neck, was related to stress and bullying. In June 2008, a three page letter was sent to management outlining her alleged treatment and the symptoms she attributed to that treatment. Mrs Hurley was later informed that no progress could be made on her allegations without a formal complaint containing specific details.
The Legal Tests
Under Section 8 of the Safety, Health and Welfare at Work Act 2005 every employer must protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. An employer’s duty extends to managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of its employees at risk. An employer should put in place the necessary protective and preventative measures to prevent injury. Improper conduct has been held to include matters such as bullying and harassment in the workplace.
The test for determining whether conduct amounts to bullying is contained in the Code of Practice appended to the Industrial Relations Act 1990;
“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 work”.
Mr Justice McDermott held that “an accumulation of petty daily humiliations and repeated spiteful or petty actions with a continuing social rejection or exclusion is the very essence” of the legal definition of bullying.
Mr Justice McDermott was satisfied that:
- Mrs Hurley’s supervisors and managers were fully aware of the tensions.
- They were aware from an early stage of the treatment she was being subjected to.
- She was left with no practical support or protection, which it was her employer’s duty to provide, and in essence she was left on her own to ride out the storm.
- Mrs Hurley was not encouraged to abide by the Code, which would have encouraged her to make a formal complaint, and was instead directed down a route to leave matters lie.
In those circumstances, the Court was satisfied that the employer was liable for the bullying and harassment Mrs Hurley suffered at the hands of her co-workers, of which it was aware and failed to address. The employer was in breach of its common law duty of care to its employee and in breach of Section 8 of the Safety, Health and Welfare at Work Act in that the damage to Mrs Hurley’s health was reasonably foreseeable in particular where a Code existed and was effectively not invoked on management advice. While the Code was invoked in 2008 Mr Justice McDermott felt that this was too little too late.
What should you do in such a case?
As can be seen from the above it is important that not only do you have a detailed bullying and harassment policy in place, which is consistent with the Code of Practice, but that employees and managers receive full training on such policies. Employees should be aware of what constitutes bullying and harassment and the potential sanctions should they be found to have breached the policy.
When an employer becomes aware that there may be an issue with bullying in the workplace the employer should be proactive. The employee should be encouraged to make a complaint and the procedure should be discussed with them together with what protections the company has in place to prevent victimisation or adverse treatment of employees who make a complaint or act as witnesses in such an investigation.
In short, if an employer is aware of bullying and harassment in the workplace it should address it in a meaningful proactive way in accordance with its company policy and the Code of Practice.