The 2 Big Problems With Claiming for Bullying in the Workplace

workplace bullying

Are you being bullied at work?

No, I mean really being bullied. As in repeated inappropriate behaviour which undermines your dignity as an employee.

Let me explain.

If I got a euro for every time an employee came to me and told me he/she was being bullied in work I would be a wealthy man.

But the vast majority of the time it what is described to me is not bullying, and will not fall within the legal definition of bullying.

For example, often, the employee will tell me she has been subjected to the disciplinary procedure in the workplace. There is two problems with claiming this is bullying:

  1. It is a one off situation, and not part of a repeated pattern of behaviour which undermines the employee’s dignity;
  2. Management is entitled to invoke the disciplinary procedure in the workplace, for obvious reasons.

So, being involved in a disciplinary procedure is not bullying, per se, although if it was part of a concerted campaign of inappropriate behaviour.

On other occasions, an employee will have an issue or complaint in relation to some aspect of their work, or terms and conditions of their employment. They will, correctly, invoke the grievance procedure in the workplace, but disagree with the outcome.

They simply will not accept the decision, as it was not what they wanted or expected. The disappointment is understandable, but bullying it is not.

Remember if you raise a complaint or grievance or bring a claim or legal proceedings there is a number of potential outcomes. One of these is that you will lose. You need to be ready for this, and ready to put it behind you and move on.

The legal definition of bullying was recently affirmed in the Supreme Court decision in the Ruffley v Board of Management of St. Anne’s School. Remember, we are talking about repeated, inappropriate behaviour which undermines the dignity of the employee.

What does this mean?

Firstly, the conduct complained of must be repeated. This probably means a period of at least 6 months. It is not possible to say, with any confidence, that a lesser period will not be considered bullying. But the point you must take from this is: the inappropriate conduct must not be a one off situation, or of short duration.

Secondly, the conduct complained of as bullying behaviour must undermine the dignity of the employee. What does this mean?

According to the Supreme Court decision the type of behaviour you must prove

must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

This, clearly, is a pretty high hurdle to clear.

The Court also held that a certain degree of robustness is required of the employee in the workplace. Instruction, direction and even, on occasion, robust management, are all necessary in a workplace to ensure efficiency, that the work gets done, and health and safety in the workplace is maintained.

The treatment you endure at work may make you very annoyed, it may upset you from time to time, you may feel it is personal, you may feel it is bullying.

But from a legal perspective, proving bullying behaviour, according to Justice Charleton in the Supreme Court, must clear a high standard of proof:

“the test for bullying is of necessity to be set very high”.

The reason for this, I presume, is that for workplaces to function management must be able to manage and organise the affairs of the workplace safely, without facing frequent Court proceedings for perceived slights, give necessary direction and instruction, and, occasionally, robust management.

The Legal Redress for Bullying

There are two substantial types of claim (one more substantial than the other) you can bring arising from being a victim of bullying, assuming that you can prove that what you have experienced is bullying, as discussed above.

  1. A Claim in Civil Court

Your claim will be that a tort (civil wrong) has occurred.

You must prove that the employer has been negligent in failing to discharge his duty of care, discharging his duty to provide a safe place of work, that you have suffered a recognised psychiatric or psychological injury as a result of that negligence, and are entitled to recover damages. You would also claim that the employer is in breach of the contract of employment in failing to deal property and promptly with your complaints.

Going to Court is expensive and, in relation to costs, the winner takes all. (Elsewhere on my site I have set out what you need to prove to win your case in Court).

2. A Claim for Constructive Dismissal

This claim is brought to the WRC (Workplace Relations Commission) and involves you quitting your job and claiming that the bullying you have suffered in the workplace has not been dealt with by the employer, and you have had no real choice but to leave your job.

This claim does not have the cost implications of going to Court, but the redress you can be awarded is significantly less, too, as you cannot be awarded damages for pain and suffering.

You can only be awarded financial loss for your loss of employment. The amount of financial loos will depend on how quickly you get a new job.

Conclusion

You will see from the above that the two main options open to you if you are a victim of bullying in the workplace have inherent difficulties.

Going to Court is a high stakes endeavour with potentially high legal costs, a high burden of proof to prove bullying, and you must be able to prove you have suffered a recognised injury of a psychological or psychiatric nature.

Going to the WRC on a constructive dismissal claim will see you losing your job and only being able to recover your financial loss for being out of work between jobs.

The two big problems with commencing some type of claim or redress for bullying in the workplace are:

  1. Satisfying the legal proof required to prove bullying
  2. The difficulties associated with the avenues of redress open to you.

If you suffer from bullying you do not have to suffer in silence. There is action you can take to resolve the difficulty.

But it is probably useful that you are aware of the difficulties at the outset.

Bullying in the Workplace in Ireland-Supreme Court Raises the Bar to Successful Claims?

workplace bullying

Has the Supreme Court raised the bar to successful bullying claims with this decision delivered on 26th May, 2017?

Are you being bullied at work? A lot of people complain to me about bullying.

You would not believe the large number of queries I received from people about bullying, and allegations of being bullied in work.

Many of them are, quite frankly, misguided and do a disservice to genuine victims of bullying in the workplace.

I have written quite a few posts about bullying in the workplace, such as

  1. Workplace bullying and non-physical injuries-what you need to prove
  2. The High Court Ruffley case (Una Ruffley v Board of Management of St. Anne’s School).

I also wrote about the Court of Appeal overturning the High Court decision in the Ruffley case.

This case has recently been dealt with by the Supreme Court in May, 2017, and as the Supreme Court is the highest ranking Court in Ireland what it has held in the Ruffley case is well worth taking a look at.

The Court itself has held that “this novel case will set a benchmark for all bullying claims.”

So, if you feel you are being bullied and are considering a claim on the grounds of bullying in the workplace you need to consider carefully what the Supreme Court has to say.

The background to the case is that Una Ruffley was a special needs assistant in a primary school in Kildare, St. Annes. In January, 2010 she was disciplined by her employer, the Board of Management of the School.

Una Ruffley claimed that this disciplinary procedure was part of a bullying campaign against her, and had suffered a personal injury of a psychological nature as a result.

Ms Ruffley commenced a personal injury claim in the High Court and was awarded over €255,000 euros in 2014.

Judge O’Neill in that case held that she had been bullied as she was subjected to repeated inappropriate behaviour which affected her dignity at work, and Judge O’Neill accepted the definition of bullying as set out in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

“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.”

Appeal

This decision was appealed to the Court of Appeal and Judge O’Neill’s finding in her favour was overturned by 2 to 1. The reasons for this was the finding that in this particular case the Board of Management had not been guilty of the type of repetitive inappropriate conduct which undermined the right to dignity in the workplace for a period of over one year as was found by the trial judge.

One of the Judges stated that the absence of fair procedures on its own could constitute bullying; another Judge held that the behaviour had to be repeated and reasonably proximate in time.

These are obviously two completely different, contradictory opinions. For this reason, the appeal to the Supreme Court was watched closely by legal professionals because it was hoped that the Supreme Court would clarify the actual test of what constituted repeated, inappropriate behaviour-that is, bullying-from a practical perspective.

Appeal to Supreme Court

The Court agreed that the test for bullying, as set out in Quigley v Complex Tool and Moulding Limited [2008] IESC 44, was still the correct test. This means the conduct complained of must be

  • Repeated
  • Inappropriate
  • Undermining of the dignity of the employee at work.

The Court on this occasion held that each part of this test must be fulfilled on each occasion of behaviour which is argued constitutes a pattern of bullying, and found against Ms Ruffley and held that this case was not one that should have attracted damages.

The Court also distinguishes ordinary management from bullying, and holds that there is a certain degree of robustness expected from employees.

It is clear from this case that the bar over which an employee must jump to prove bullying has been raised.

The Court held:

Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”

It also clarifies that the conduct required to prove the undermining of the employee’s dignity at work must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

Justice Charleton, in his decision, states that “the test for bullying is of necessity to be set very high”.

It appears from the Supreme Court decision in this case that it has succeeded in setting the bar high.

You can read the full decision ( Ruffley -v- The Board of Management of Saint Anne’s School, [2017] IESC 33) of the Supreme Court here-it is well worth a read.

Interestingly, Mr. Justice Peter Charleton states that

“Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.Given that the test for bullying is of necessity to be set very high, these are not circumstances which can attract damages.”

Employers’ Liability in Negligence Claims-the Essentials

employers negligence

“Duty of care” is a phrase that you will hear bandied about often.

What does it mean, though? What is the extent of that duty of care?

What happens if an employer is in breach of that duty?

Let’s take a look, shall we?

 

It is well settled law that an employer owes a duty of care to his/her employee(s). The employer’s duty is not an unlimited one though, and he is not an insurer.

He will have discharged his duty if he does what a reasonable and prudent employer would have done in the circumstances.

Therefore for an employee to succeed in a claim of negligence he must prove how and why the employer was in breach of his duty of care.

Courts have not laid down one single duty of care but have recognised that it will vary in the circumstances depending on the employee’s age, experience, knowledge, and the risks inherent in the particular type of work.

The Courts have laid down general guidelines as to the extent of the duty of care:

  • There is no obligation to warn of obvious risks
  • Reasonable care is what is required of the employer
  • An argument that an employer was guilty by omission will be closely scrutinised on the basis that it is easy to be wise with the benefit of hindsight.

Employers’ Liability in Negligence v Breach of statutory duty

The negligence action depends on whether the employer acted unreasonably or not. A claim for breach of statutory duty depends on the precise terms of the particular statutory provision and what is the duty set out. The Safety, Health and Welfare at Work Act, 1989 and 2005 looms large in this context.

An employee can sue for either or both of these causes of action.

Is the employer only liable for physical injury?

No, provided a duty of care can be established an employee who suffers a psychiatric/psychological injury or pure economic loss as a result of the employer’s negligence should be entitled to compensation.

Psychiatric Injury

An employer who is or ought to be aware that an employee is working under such pressures as to cause his mental health to break down owes a duty to take reasonable steps to deal with the problem. (Please refer to this article and this article for more information about non physical injuries in the workplace).

Property Damage

There is a reluctance of the courts to accept that the employer is liable for an employee’s property damage where there is no physical injury/damage. Therefore, it is clear there is an obligation on the employer in respect of physical injury but not property damage on its own.

Assessment of Employer’s Liability

The scope of the duty of care is generally assessed under 4 headings:

  1. The provision of competent staff
  2. The provision of a safe place of work
  3. The provision of proper equipment
  4. The provision of a safe system of work.

Competent Staff

It will need to be shown that the employer was aware of the staff incompetence. It may also be the case that failing to provide competent staff may fall under the heading of failing to provide a safe system of work through inadequate supervision of employees.

Safe Place of Work

The employer must ensure a reasonably safe place of work. The employer’s obligation is not to make accidents impossible, and it will be “a matter of degree and fact” in every case involving premises not under the employer’s control, for example, a worker visiting a house as a home help.

Again, the employer has a legal duty to take reasonable care to provide proper appliances/equipment and maintain them in a proper condition.

However, where the employer supplies a standard tool with a latent defect which he had no means of discovering, the employer may avoid liability in negligence if the employee is injured.

Safe System of Work

There is no definition of a safe system of work and safe will mean “as safe as reasonably possible in the circumstances”. This will obviously depend on the particular job.

Lifting weights would be a significant part of a safe system but at the employer only needs to take reasonable care to withstand a negligence claim the 3employhee will probably have greater protection from the various statutory provisions/regulations made concerning health and safety, lifting weights etc.

Ensuring a safe system in work would certainly involve proper training, depending on the job eg lifting weights, turning patients etc.

From an employer’s perspective, it is not enough to merely provide a safe system but he must ensure that the system is adhered to.

The provision of a safe system can cause particular difficulties for the defence forces and security firms.

Employer’s Negligence Must Have Caused the Injury

It is not enough to show the employer was negligent; the injured party must show this negligence caused the injury complained of and the injury was reasonably foreseeable.

The contributory negligence of the employee will be a factor in assessing any case but in an employment situation it will be the employer who will be setting the standard of care. Also, the junior status of an employee may prohibit him from complaining and an employee’s desire to get on with the job may be praiseworthy rather than amounting to contributory negligence on his behalf.

Voluntarily Assumption of Risk

It used to be a defence that the employee voluntarily assumed the risk; however, this defence has practically disappeared in cases of common law negligence.

Conclusion

The employer’s duty of care will be discharged if he does what a reasonable and prudent employer would have done in the circumstances.

If he has not done this he may be liable for an injury arising from that failure, provided the negligence caused the injury.

How to Deal With Bullying in the Workplace

workplace bullying

Have you experienced the stomach churning feeling associated with bullying?

Are you an employer concerned with how to deal with bullying in the workplace?

I recently gave a talk to an anti bullying group in Mullingar, the Midlands Anti Bullying Network.

Below are the slides from that talk.

Workplace Bullying and Non Physical Personal Injuries Claims-What You Need to Prove

workplace-bullying

Are you being bullied at work? Perhaps you have a family member, friend or colleague who has complained of being bullied?

Many people, unfortunately, are bullied at work.

Thankfully, you don’t have to suffer in silence. There are solutions.

In 2014, for example, there was an important High Court case-Una Ruffley and the Board of Management of St. Anne’s School-which saw Ruffley, a special needs assistant in a primary school in Kildare being awarded €255,000 .

Note: this High Court decision was overturned on appeal. Read about that decision here.

The case is a useful one to take a look at because it restates certain principles and proofs required to win a case for a personal injury arising from alleged bullying in the workplace.

Quite frankly it is not simply enough to show that you have been bullied. You must also prove you suffered a personal injury as a result.

Background to Ruffley -v- Board of Management St. Anne’s School

The background to the case was after an incident involving the locking of the door of the school’s “sensory room”, the school Principal, Pauline Dempsey, brought the SNA to a meeting and warned her of disciplinary action.

However she later wrote to the SNA advising her that no action would be taken. However, there was to be a three month review of the SNA’s performance.

The review of the SNAs work involved the filling in of a form which led to a difficulty with the Principal accusing the SNA of a “falsification” of the review form.

The Principal then brought the original incident involving the locked door and the performance of the SNA to the Board of Management. The Board recommended that the SNA receive a formal warning and that her next salary increment be deferred.

The Judge in the High Court doubted that the Principal had outlined the full facts surrounding the difficulty to the Board.

The Principal then gave the SNA a letter stating that an investigation had been carried out and if there was a further breach of school policy there could be further action including dismissal.

The High Court held that there was no such investigation and that the SNA had been subjected to a disciplinary sanction that was severe and unmerited.

Workplace bullying defined

Firstly Judge O’Neill referred to the definition of workplace bullying as defined in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

“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.

The Judge also referred to the Supreme Court decision:

“In Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. at 349, it was held by the Supreme Court that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work. Furthermore, in his judgment, Fennelly J. said:

“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.””

Judge O’Neill said in his judgment:

“It useful to reflect on what had happened to the plaintiff up to this point in time. The plaintiff was subjected to a disciplinary sanction of a severe kind which was unmerited

The manner in which the disciplinary process with regard to the locking of the Sensory Room door was handled by Ms. Dempsey was grossly unfair to the plaintiff and utterly denied her the benefit of her constitutional right to natural justice and fair procedures.

The conjuring up by Ms. Dempsey of the additional offence of failing to improve during the review process and of the “falsification” of the review forms was, as discussed earlier, at best, irrational, in the sense of there being a complete lack of any real basis for such conclusions. It is hard to understand how an educated, sophisticated person, such as Ms. Dempsey, could arrive at such conclusions without an element of bad faith.”

“I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.”

Repeated inappropriate behaviour over a period of time

“Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”

An identifiable psychiatric injury

The need to prove that you have suffered an identifiable psychiatric injury is a critical proof to win your case for non physical personal injuries.

“The next question to be considered is whether or not the plaintiff has, as a result of the conduct of the defendants, suffered an identifiable psychiatric injury as indicated in the passage from the judgment of Fennelly J. in the Quigley Complex Tooling & Moulding Ltd. case quoted above.”

“The plaintiff has given evidence to me, which I accept, that from October/November 2009, she began to experience high levels of stress caused by what she perceived as the unfair treatment of her by the defendants, and in particular, Ms. Dempsey. As time went on, and not only was the problem not being resolved but it was getting worse, as she saw it, I have no doubt that these symptoms of stress became much worse, and I accept that from around March 2010, she was suffering constantly from headaches, insomnia, diarrhoea and high levels of anxiety. All of this persisted through the summer months of 2010, and she eventually attended her General Practitioner, on 19th August 2010, complaining of frontal facial temple headaches all summer, that she could not think straight, all related to a bullying issue at school. Her General Practitioner diagnosed muscle contraction headache and prescribed medication for her. She attended her General Practitioner again on 28th September 2010, with similar complaints, with the addition of some neck pain. The General Practitioner put all this down to stress related to bullying.”

“I have no doubt that the imminent return to school after the summer holidays had a heightening effect on her stress and anxiety at that time. On her return to school, a further episode with the Principal, Ms. Dempsey, occurred on 27th September 2009.”

“This incident, in the ordinary course, would not have been of any great consequence, but for the plaintiff, it was the last straw. She felt she could bear it no more and found the stress of continuing in the school intolerable. I have no doubt that at that stage, she had a heightened sense of apprehension in all her dealings with Ms. Dempsey, having regard to all that had happened in the previous year. As a direct consequence of this incident, the plaintiff felt she could no longer continue in the school and she went out on certified sick leave due to work-related stress.”

“Prior to 2009, the plaintiff had two previous episodes of Depression, one of which was a postpartum Depression and the other a reaction to bereavements. She required anti-depressive medication for these but she recovered fully on both occasions. However, and the evidence of Dr. Byrne, a psychiatrist called for the plaintiff, satisfies me in this respect, having suffered previous episodes of Depression, she was predisposed to further depressive illness. I am satisfied on the evidence of Dr. Michael McDonnell, her GP, and Dr. Byrne that the plaintiff suffered an Anxiety and Depressive Disorder resulting from her reaction to what had happened to her in St. Anne’s School from September 2009 through to September 2010. This resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and an inability to cope with everyday life. All of this rendered her incapable of returning to work in the defendants’ school, and all of that, allied to her fear that she would not have a good reference, inhibited her from seeking employment elsewhere. As a result, she has not worked since 27th September 2010.

She has been on anti-anxiety and anti-depression medication since late 2010, and she attended the Kildare Mental Health Services in Newbridge on a regular basis where she was prescribed anti-Depression medication. Her situation has not improved over the intervening period. An examination of her by Dr. McDonnell in February 2014, included the completion of two questionnaires, namely, the General Anxiety Disorder Assessment and the Patient Health Questionnaire, the results of which indicated she was suffering from a severe anxiety state and severe Depression. I think it probable that the impending litigation was, at that stage, worsening her symptoms, but that notwithstanding, there can be no doubt that she has, since late 2010, suffered from a significant anxiety and depressive disorder and that continues to afflict her.

Dr. Byrne’s evidence was to the effect that she has to continue with her medication and other forms of support and therapy which should enable her to recover her whole sense of personal safety and her sense of self-worth, and to enable her to have a feeling of control of her life. With all of that, she could look forward to a gradual reintroduction to a work situation. It would seem to me to be probable that when this litigation is concluded, there is likely to be a significant improvement in her anxiety and depressive state. I would think it probable, having regard to Dr. Byrne’s evidence, that she will have the capacity, in due course, to return to fulltime, gainful employment.”

In conclusion, the Judge stated that:

“I am satisfied that the plaintiff has suffered a definite and identifiable psychiatric injury from which she still continues to suffer significantly and will continue to do so for some time into the future. Therefore, she must be compensated for her pain and suffering in that regard to date and into the future. In my opinion, the appropriate sum to compensate the plaintiff for her psychiatric injury to date is the sum of €75,000. Insofar as the future is concerned, as already mentioned, the probability is that she will improve and go on to recover over time, particularly when this litigation is finalised. With that in mind, in my opinion, the appropriate sum to compensate her for her psychiatric injury for the future is the sum of €40,000, making a total for general damages of €115,000.

The plaintiff’s loss of earnings up to 6th March 2014 was agreed in the sum of €93,276.39. There was some suggestion that there may have been some deductible benefits which would reduce that figure, but the court was not told if that was so or what the amount thereof should be. That being so, I must proceed on the basis that there are no deductible social welfare benefits.

In my view, the plaintiff is entitled to recover the foregoing sum, and as it is clear she will probably not be able to return to gainful employment for some time yet, is entitled to recover damages in respect of future loss of earnings. I think it probable that with appropriate treatment, she will be fit for such employment in the relatively near future, and accordingly, I would award her half the foregoing sum again in respect of future loss of earnings, namely, €47,000, making a total of €140,276 in respect of loss of earnings past and future.

Accordingly, there will be judgment for the plaintiff in the sum of €255,276.”


You can read the full decision of this case here.

Note: this decision was later overturned by the Court of Appeal.