The bullying dilemma in Irish law

workplace bullying ireland

There is a massive problem for the employee who feels she is being bullied in the workplace. Yes, there are remedies. 

Yes, there are courses of action, including legal, open to any victim.

But it is still a difficult situation. Let me explain.

If you feel you are being bullied in the workplace you would be obliged to try to deal with the issue in the workplace in the first instance. The bullying procedure, if one exists in your staff handbook, will tell you the first step is to confront the bully and tell him that you believe his behaviour towards you is inappropriate.

This is a tough thing to do, let’s be honest.

If that does not work the next step may be to invoke the informal or formal bullying procedure. This will involve the victim making a formal complaint to HR or a line manager about what is going on.

But if the complaint is not upheld the situation may have worsened for the employee who believes he has been bullied. Because now the relationship with the party against whom he made the complaint has probably significantly deteriorated, and the allegation and surrounding investigation may leave a sour taste in the mouths of all concerned.

Why would the alleged victim go through this procedure at all, you might ask?

Because if the victim tries to take the matter further-for example to the Workplace Relations Commision or Court-she will be expected to have utilised and exhausted the internal procedures first. Not doing so could weaken her case later on.

Let’s assume the complaint has not been upheld in the workplace but the employee decides to submit a trade dispute to the Workplace Relations Commission. The employer’s position, if he engages in the procedure, will be that he behaved like a reasonable employer and carried out an investigation in accordance with the procedures in the workplace. 

He will say the complaint was not upheld and he fulfilled his duty of care to all employees, including the alleged bully.

But if a trade dispute has been submitted for investigation by the WRC under the Industrial Relations Act 1969 the employer is not obliged to participate. But it is even worse than that from the perspective of the victim.

Because the employer is given the option to tick a box on the letter he receives from the WRC which prevents any investigation from being carried out. And even if he agrees to an investigation the recommendation from the WRC is legally unenforceable. 

It is only a recommendation. The employer can simply ignore it.

An employee might decide to try to pursue the matter through the civil courts. She could sue the employer for breach of contract, negligence, breach of statutory duty to provide a safe place of work, and so on.

But the employee will have to prove that she was bullied, there was a failure by the employer, and that damage and loss was a consequence of the bullying. This is difficult to prove.

When it comes to loss you might consider suing by way of a personal injury claim for a psychological or psychiatric injury you claim you have suffered. If you can prove this it will be similar to an ordinary personal injury claim and you can be compensated for your general damages (pain and suffering) and special damages (out of pocket expenses/losses).

But this is a difficult case to prove because you will need to prove you have suffered a recognised psychological injury. 

Not just ordinary workplace stress. Not just difficulty in sleeping or a sick feeling in the pit of your stomach at the thought of going to work.

A proper psychological or psychiatric injury which is recognised by the psychiatric profession.

And in the meantime you are either in work, with the associated difficulties with that, or you are out of work on certified sick leave and almost certainly losing out on your usual salary payments. 

A civil action in the courts can be slow and costly and if the case goes to a hearing it is a case of “winner takes all” when it comes to the allocation of the legal costs.

Is it any wonder that many employees who find themselves in this situation eventually just leave the job and move on?

I am not saying that nothing can be done, far from it. But it is a tough situation and can be a lonely road to travel with an uncertain outcome.