“We have an employee who is alleging bullying and harassment in the workplace and we are unsure as to exactly what constitutes bullying and harassment, we also think that there may be other health issues in the background that have not been disclosed to us. How do we tell what amounts to bullying and what happens if the employee takes a case against us and does not disclose the other health issues? How do I handle it?”
The decision of Mr Justice Moriarty in Mona Jackson v James Cahill P/A Cahill & Cahill Solicitors (Unreported, High Court, Moriarty J, 6th July 2016) is of great assistance in providing guidelines as to what actions are currently considered to fall within the definition of bullying and harassment and also what happens when an employee does not fully disclose all relevant information when attending at a medical expert, for the purposes of court proceedings.
Ms. Jackson was a solicitor in Mr. Cahill’s practice. At first Ms. Jackson and Mr. Cahill had a professional and friendly relationship. Ms. Jackson alleged that in late 2010 Mr. Cahill called all staff into his office and indicated that he was considering a 20% pay cut. She alleged that he spoke inappropriately on the subject of finances as if he was on a soapbox. Ms. Jackson also alleged that Mr. Cahill spoke to her aggressively in relation to an ESB bill and shouted at her to resolve a fee matter quickly. It was alleged that an issue arose as to a bonus and a heated conversation took place in which Mr. Cahill used foul language, leaving Ms. Jackson in tears. It was alleged that other members of staff were paid a bonus for 2011 while Ms. Jackson was not. In a text message to Ms. Jackson on the 23rd of December Mr. Cahill stated that he “wasn’t in a gentle negotiating disposition, and wanted to make a decision on the proposal for a pay cut in 2012 before Christmas”. During a conversation that followed, on the 6th of January 2012, Ms. Jackson asked Mr. Cahill to “stop bullying her”. Ms. Jackson gave evidence that Mr. Cahill later apologised for being harsh.
Ms. Jackson having already accepted a 15% pay cut, agreed to a further 5% cut on the 3rd May 2012. Mr. Cahill subsequently left a note on Ms. Jackson’s keyboard stating among other things her salary would have to be renegotiated. In December 2012, Mr. Cahill wrote to Ms. Jackson stating that he expected that someday the bank would not pay the wages of the firm and that, whilst the reductions had been difficult for all, most of the difficulties arose for other staff who earned less than Ms. Jackson and who have families to raise. Ms. Jackson alleges that she found this particularly hurtful and unprofessional. On the 13th December 2012, Ms. Jackson stated to Mr. Cahill that he was a bully and being very upset, sought to leave the office. She alleged that he came after her, grabbed a dictaphone and asked whether she wanted to put that on tape. Ms. Jackson sent a formal letter of complaint to Mr. Cahill stating that she had endured a campaign of psychological bullying and emotional blackmail.
Mr. Cahill engaged an HR consultant to investigate the claims. While not relied upon in the Judgment, the investigation did not follow established procedures nor use the accepted definition of bullying.
Ms. Jackson also alleged that she was not invited to a solicitors’ lunch in Castlebar that Christmas. It was subsequently alleged that on the 28th January 2013, while Ms. Jackson was on sick leave, Mr. Cahill called to her house uninvited. This allegedly caused her considerable surprise and concern.
It was alleged that arising from the manner in which she was treated Ms. Jackson suffered from significant depression and anxiety. This diagnosis was disputed by Mr. Cahill’s medical expert, who did not consider that she was suffering from an emotional reaction which reached a level to justify a medical psychiatric diagnosis. During her consultation with her medical expert, a Consultant Psychiatrist, Ms. Jackson did not disclose that she had had hip replacement surgery, which left her with ongoing pain and was of itself the subject of High Court proceedings. The expert agreed that this was information which should have been given to her by Ms. Jackson at the consultation and that any other stressful factor in Ms. Jackson’s life had to be investigated as a possible cause of her illness.
The Legal Test
Mr. Justice Moriarty in examining the test for determining whether conduct amounts to bullying reaffirmed the accepted definition of bullying as 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 Moriarty, also referred to the established definitions of bullying in Quigley v Complex Tooling and Moulding. Quigley confirms that for conduct to amount to bullying it must be repeated and undermine the dignity of the employee at work. He also referred to the recent Court of Appeal decision in Ruffley v Board of Management of St. Anne’s School which stated that liability for workplace bullying depends on whether;
- the Plaintiff has suffered an injury to his/her health as opposed to what might be described as ordinary occupational stress;
- the injury is attributable to the workplace; and,
- the harm suffered to the employee concerned was reasonably foreseeable in all of the circumstances.
Mr. Justice Moriarty also referred to the case of Browne v Minister for Justice, Equality and Law Reform, which held that to establish bullying, there must be a degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.
Score of 8 to 4 in favour of Ms. Jackson
In examining the actions of Mr. Cahill, Mr. Justice Moriarty found that in “sporting terms” there was an approximate score of 8 to 4 in favour of Ms. Jackson and helpfully provided an outline of what he believed did and did not amount to bullying.
In essence he found that the following constituted bullying;
- The unequal treatment in relation to the bonus accompanied by the obscene language.
- Unwarranted criticism of her efforts to finalise fees in a case.
- Texting her in an aggressive and needless fashion to finalise terms of remuneration.
- Harassing her to finalise her position in relation to one of the proposed pay cuts, so aggressively that he subsequently apologised for being harsh with her.
- Depicting her to other staff members as having no further interest as she had received her bonuses.
- Depicting her as being paid more generously than staff members who had families to support.
- Unhappy dealings in relation to her practising certificate.
- Sending an erratic handwritten letter to Ms. Jackson.
Other matters were found not to constitute bullying;
- Initial incident relating to aggressively coming in to Ms. Jackson’s office.
- Placing the ESB bill under her nose.
- Failure to forward her the invitation to the Christmas lunch.
- Delivering the letter by hand, did not in the view of the Judge amount to bullying.
Reduction in award
Mr. Justice Moriarty was convinced of the evidence of Ms. Jackson’s expert that the events caused or significantly contributed to a verified illness, and stated that cases of a comparable nature have resulted in an award of general damages of approximately €50,000.00. He advised that he was of the mind to make an award in that vicinity, however, he was concerned in relation to the manner in which Ms. Jackson had not so much as mentioned the existence or circumstances of her unsuccessful hip surgery to the expert nor the related High Court proceedings. He stated that he believed that Ms. Jackson had been less than candid and that this must impact on his award. Mr. Justice Moriarty subsequently deducted 20% from the projected gross award of €50,000.00 and granted judgment in favour of Ms. Jackson in the sum of €40,000.00.
While we await the outcome of the Ruffley case, which is currently before the Supreme Court, the decision in Jackson is helpful in setting out what the Courts currently view as amounting to bullying and harassment. In short, each of these cases needs to be judged on their own merit, however, in assessing whether bullying has occurred, the basic three part test should always be considered i.e. whether the actions are “repeated, inappropriate and undermine the dignity at work” of the employee. We would always suggest that when you are undertaking an investigation into bullying and harassment in the workplace, you seek advice as to the individual circumstances and ensure that your relevant policies and procedures are consistent with the current legal position and up-to-date.