What Melissa’s Story Can Teach Us About Bullying in the Workplace

workplace bullying ireland

When Melissa¹ came to see me she was very upset and was anxious to pursue her employer if that was possible.

Except she didn’t say ‘pursue her employer’.

She wanted to teach him a costly lesson and ‘put manners on him’. She wanted to take him into a metaphorical darkened room and give him a good ‘seeing to’.

To help me visualise what he looked like she told me to just picture Boycie, the second hand car dealer, in ‘Only Fools and Horses’.

Anyway, once she was seated and settled she told me her story.

Melissa told me that she was being bullied in work, nothing she did appeared to be good enough, she had enough and now wanted to see about taking legal action against the bully (her manager) or her employer, or both.

I asked her to tell me her story, the gory details. What she told me over the next 45 minutes was her version of ‘being bullied’.

Firstly, she told me she had been a loyal, hardworking member of staff for over 5 years and had never received a raise.

She also told me that recently she had looked for a day off because she had nobody to mind her child when the school was closed for a day. And her manager, the alleged bully, had made such a song and dance of it that you would think she was asking him to give her the rest of the month off, or something.

And then she told me about the nitpicking way her manager had of going on about her work.

Melissa was a member of the administrative staff and had to do a bit of debt collection, too, to chase up slow debtors. Her manager was forever pointing out mistakes or typographical errors she made but she made the point that she only made these mistakes because she was trying so hard and was under pressure.

Now he is criticising her for her phone manner in speaking with customers, now it’s the odd mistake in the letters she is sending out, now it is her time-keeping.

And then, he has mentioned the possibility of putting her on a PIP-a performance improvement plan-if her performance does not improve.

She had reached the end of the line with him and her employer and now wanted to bring a claim or legal proceedings to ensure the bullying stopped and ensure ‘others did not have to go through what I have to endure’.

And if she was compensated for the distress caused to her by her manager and/or employer, well all the better. She was finding it hard enough to make ends meet as it is.

I keep a box of tissues in the back office and had already placed them on my desk in front of her before she started telling me her story. Now, I had to give her my opinion and advise her about the prospects for any claim she brought against her employer. I feared the tissues would be now used more liberally for the news I had to give her was not what she wanted to hear.

Firstly, I had to tell her that not being given a pay rise for 5 years or thereabouts was very unlikely to be considered bullying behaviour. I explained that bullying behaviour is defined as:

“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.” (Health and Safety Authority)

Supreme Court’s view on bullying

The Supreme Court, in Quigley v Complex Tooling and Moulding Limited, held that bullying must be ‘repeated, inappropriate and undermining of the dignity of the employee at work’.

The Supreme Court, in 2017 in the Ruffley v Board of Management of St. Anne’s school case, held that the behaviour complained of must be repeated, a pattern of behaviour and the question of undermining the dignity of the employee is critical; such behaviours must be “behaviour which is inappropriate at a human level” and Mr. Justice Charleton said, “conduct is be judged according to the standard of human beings, and not of angels.”

I tried to impress upon Melissa that the conduct she complained of was unlikely to reach the required standard as confirmed by the Supreme Court. In fact, the manager making a song and dance of a request for a day off, while frustrating and annoying for her, is a one off event and cannot constitute bullying, unless it is part of a pattern of repeated behaviour.

I moved on to the question of mistakes in her work and the concern of her manager with her performance, particularly mistakes in letters going out or poor treatment of customers on the phone.

I had to tell her that any employer is entitled to expect a certain standard in the workplace and if the employee does not meet this standard then a Performance Improvement Plan is always a lawful possibility.

But that this was not, of itself, bullying behaviour.

Remedies for bullying

I then had to give Melissa more bad news in relation to her ‘case’.

And that was that even if she managed to surmount the high bar set by the Supreme Court in ‘Ruffley’ to actually prove truly bullying behaviour the options open to her by way of remedy also brought their own problems.

One remedy open to her, for example, was to bring a claim to the WRC under the Industrial Relations act 1969 claiming that there was a trade dispute between her and her employer insofar as the employer had failed to prevent bullying in the workplace. However, if the employer objected to such an investigation by the WRC, as it was referred under the Industrial Relations legislation, the WRC could not deal with it.

If this happened she could go to the Labour Court, but any recommendation in her favour from the Labour Court would be legally unenforceable-the employer could simply ignore it and the only way to enforce it would be through industrial relations action such as a picket.

Constructive Dismissal

A second remedy open to her would be to resign and bring a claim for constructive dismissal. I had to advise her that her claim had little chance of success as she had not exhausted the internal procedures yet.

Personal Injury Claim

A third remedy would be to bring a personal injuries claim. The difficulty with this is that she would have to prove she had suffered an identifiable psychiatric injury as the Supreme Court held,

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

I was also obliged to tell her that this type of case was a difficult case to win, and would be slow and costly due to legal costs and expert medical reports required, including a consultant psychiatric report which would be relied upon to proved she had suffered an identifiable psychiatric injury.

Conclusion

Bullying is an easy allegation to throw around, and I hear it all the time, quite frankly. But from a legal perspective bullying requires a particularly high standard of proof and, according to the Supreme Court, “conduct is be judged according to the standard of human beings, and not of angels.”

Melissa was exceptionally disappointed but I would be doing her a grave disservice if I did not tell her what I made of her situation honestly and plainly. Last I heard Melissa had left that job and is happy in her new role which, fortunately, is closer to her home.

¹Please note: “Melissa” is not a real name, although the facts of the story above are true.

If you are unsure of your rights you may be interested in arranging a consultation to find out where you stand from a legal perspective. You can learn more about arranging a consultation here.

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.”