Hi Anthony,

This is a difficult question to answer. To begin with your Safety Statement should have both a bullying and stress policy document which describes the actions to be taken in such a situation. If it cannot be dealt with in-house then there should be some independent body who can aducate on the matter.

Bullying Harassment and Stress in the Workplace Employers Obligations

General

The duty of care of an employer to look after the health and safety of employees, which includes the reason for prevention of harassment, bullying and stress related injuries in the workplace, is implied into the contract of employment by the Safety Health and Welfare at Work Act, 2005 and the Safety, Health and Welfare at Work (General Application) Regulations, 2007.

Breach of this duty may be treated as a breach of the contract of employment, enabling the employee to claim constructive dismissal. It was constructive dismissal that was claimed by Liz Allen in the case of Liz Allen –v- Independent Newspapers (Ireland) Limited (UD641/2000) which was a case brought by Liz Allen to the Employment Appeals Tribunal. In this case, the Employment Appeals Tribunal awarded Ms. Allen IR£70,500 compensation. Significantly in this case, the EAT included compensation for constructive dismissal because of work related stress injuries. Until this decision, employees could not claim for loss of earnings, even if the employee was too ill to work due to the stress caused by the actual illness.

The 2005 Act and the 2007 Regulations provide that employers should carry out a risk assessment in their place of work in the preparation of a safety statement which assessment should include the risk associated with bullying, harassment and stress in the workplace. Procedures or preventative measures should follow this risk assessment in order to eliminate the risk or reduce the risk to an acceptable level. The 2007 Regulations require that employers document the results of this risk assessment.

1. Bullying

There is no statute addressing bullying in the workplace. Indeed one of the problems of bulling is the absence of an accepted definition. The general accepted definition is as follows:-

“Workplace bulling 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 this behaviour which may be an affront dignity at work but is a once off incident is not considered to be bullying.”

Where the person doing the bulling is a co-employee, the Plaintiff may rely on vicarious liability. This arose in the case of Michael Shanley –v- Sligo County Council (Unreported, High Court, Butler J. October 10th, 2001). In this case, the Plaintiff was systematically abused, bullied and belittled over a protracted period of time by a superior officer. The abuse had been so severe that the Plaintiff had contemplated suicide. It was noted that the Plaintiff had filed complaints with Senior Management, who had failed to act. Butler J. assessed damages at IR£65,000, in a case where the County Council had admitted liability. The general vicarious liability principle is that the law imposes liability for acts done “within the scope of the employee’s employment”. In the case of a Health Board –v- BC and the Labour Court [1994] E.L.R.27, Costello J. summarised the legal position in this jurisdiction as follows:-

“In the absence of expressed statutory provision, the law in this Country in relation to the liability of an employer for the tortuous acts (including statutory torts) of his employee is perfectly clear – an employer is vicariously liable whether the act is committed by his employee within the scope of his employment”.

Relevant factors include where the bullying occurs, whether the bullied is subordinate to the person doing the bullying and works from the same department and what the alleged acts of bullying consist of. A number of successful bullying cases have been brought in the UK.

2. Harassment

Harassment is defined as discrimination in this jurisdiction under the Employment Equality Act, 1998, soon to be amended by the Equality Bill, 2004. The 1998 Act imposes a duty on the employer to ensure that an employee is not exposed to harassment in the workplace. The Act outlaws discrimination in employment on nine distinct grounds, mainly sex, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community both direct and indirect discrimination are outlawed. The Act covers all aspects of employment and applies to employers in the public and private sectors as well as advertising, employment agencies, vocational training bodies and membership of Trade Unions and professional bodies. Section 15 of the 1998 Act provides that anything done by a person in the course of his/her employment should be treated for the purposes of the Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

The 1998 Act outlaws the harassment of employees and defines harassment as any act or conduct which is both unwelcome to the Complainant and could reasonably be regarded, in relation to the relevant characteristic of the person harassed, as offensive, humiliating or intimidating to that person. The 1998 Act also makes sexual harassment in the workplace an act of discrimination. Unlike bullying, a single incident of harassment or sexual harassment would be sufficient to constitute discrimination under the 1998 Act.

The Act defines sexual harassment as acts of physical intimacy, a request for sexual favours or other acts or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or material. The conduct must be unwelcome to the recipient and reasonably capable as being regarded as offensive, humiliating or intimidating. Therefore, the definition has both a subjective and objective element.

The definitions of harassment and sexual harassment are about to be amended by the Equality Bill, 2004. This Bill amends a number of the provisions of the Employment Equality Act, 1998 and the Equal Status Act, 2000, to give effect to three European Directives. The Bill provides that harassment is any form of unwanted conduct in relation to any of the discriminatory grounds and sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose of effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The Bill therefore removes the objective element of the definition and provides for a purely subjective interpretation of the behaviour complained of.

3. Stress

The Health and Safety Authority states that stress is the invisible disease of the modern organisation and should be addressed within the Health and Safety system at work in the organisation. The Health and Safety Authority goes on to state that while we cannot smell it, touch it or see it, stress is a very real danger which employees must be protected against under the Safety, Health and Welfare at Work Act, 2005.

Stress at work results from the interaction between an aspect or many aspects of the working environment and the individual concerned. Research indicates that certain types of work environment can be more stress inducing than others. Workplace environments which may be more prone to stress reactions can include:-

• High pressure, short time frame, tight target jobs;

• Jobs with constantly high workloads with no ease off period;

• Mundane repetitive work with no peaks or intermediate goals;

• Jobs where there is threat of physical violence/attack;

• Jobs where highly complex decisions must regularly be made.

An employer’s duty is not to provide a stress free environment, but to take reasonably practicable steps to shield employees from exposure to stress and from the consequences of unreasonably stressful working conditions. Employers have both a statutory and common law duty of care to protect their staff against stress. The statutory duty arises from the Health and Safety legislation and requires risk to be eliminated or reduced so far as is reasonably practicable. The Health and Safety legislation no longer discriminates between physical and psychiatric injury and defines personal injury as including “any disease and any impairment of a person’s physical or mental condition”. If an employer becomes aware that an employee suffering from stress, then the employer is under a duty of care to take the necessary steps to remedy his symptoms of stress.

The common law duty of care to take steps to prevent stress have been dealt with at length in the UK case of Sutherland –v- Hatton which was the subject of an earlier newsletter article and is available on our web-site.

What steps should employers take?

• Conduct a risk assessment under the Health and Safety legislation and document the result.

• Take whatever steps as are reasonably practicable to eliminate or reduce the risks of bullying, harassment and stress in the workplace arising out of the risk assessment.

• Include reference to a Bullying and Harassment Policy it the Company’s Safety Statement.

• Publish a separate Policy dealing with bullying, harassment and stress in the workplace.

• Put in place a meaningful Grievance Procedure.

• Train Managers and other designated contact persons in the organisation to deal with allegations and complaints of bullying, harassment and stress.

• Have in place Employee Assistance Programmes whereby employees can go and receive confidential and meaningful counselling if they are encountering difficulties in the workplace.

• Monitor employees on a regular basis to ensure that they are not suffering from stress. In this regard, regular and meaningful performance appraisals should be carried out with employees at least once a year.

• Where an employer becomes aware that an employee is exposed to work related stress, the employer should relieve the employee of his duties on full salary and obtain advice from a health professional.

• Employers must comply with the Organisation of Working Time Act, 1997, as regards daily, weekly and annual breaks.

• Finally, and most importantly, employers should make sure that they have sufficient liability insurance to cover work related stress illnesses.

The fact that this has gone through your system from Frontline Manager to MD means it must have been investigated and recorded which means it must have been substantiated in some form or manner to go to the highest level. The evidence that the Supervisor is making comment and linking it to the employees bonus is pressure and a form of bullying. The fact the perpetrator has a history of bullying evident by the warning on file, this will have to be addressed by senior Management before it becomes a legal matter and ends up in Court. If a Supervisor is bullying a member of staff in a small Company it would be impossible to hide it from other staff so they should all be interviewed separate from the Supervisor.

I hope this is of help.

Best Regards,
Paul Tierney Technical Director Phoenix Safety.