Employment Case Law – Bullying & Harassment
Bullying, harassment and sexual harassment are words which strike fear into the minds of most Managers. These can be some of the most difficult and distracting Employee relations issues for an Organisation to deal with, and can present exposure to serious liability and bad press for an Organisation where they are not dealt with correctly. Investigations into these issues can be time consuming, and even where issues are dealt with through the necessary procedures, bad feeling can continue to permeate through the Organisation in the future. Where issues are not managed correctly, the Organisation may also face liability under a number of pieces of legislation.
The following legislation and Codes of Practice should be considered when looking at Bullying, Harassment & Sexual Harassment;
What is Workplace Bullying?
The Code of Practice on workplace bullying defines bullying 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.
Examples of bullying behaviour could include the following:
Please note that this list is not exhaustive.
What is Sexual Harassment?
The Employment Equality Acts define sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The unwanted conduct may consist of acts, requests, spoken words, gestures, or the production, display or circulation of written words, pictures or other material.
Examples of sexual harassment could include:
Please note that this list is not exhaustive.
What is Harassment?
Harassment is defined as any form of unwanted conduct relating to any of the discriminatory grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community, which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
A single incident may constitute harassment.
The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display, circulation of written words, pictures or other material.
Examples of harassment could include:
Please note that this list is not exhaustive.
Harassment and/or Sexual Harassment - How Would a Legal Case be Taken by an Employee?
An Employee may make a complaint related to harassment or sexual harassment to the Director of the Equality Tribunal.
Mediation is offered by the Equality Tribunal, with a view to the Employer and Employee agreeing on actions to resolve the situation and to agree a settlement. Mediation is conducted in private, thereby reducing the risk of negative exposure in the press and other media.
However, where the parties fail to achieve an agreed outcome, or mediation is refused, an Equality Officer may investigate the allegation. A hearing is conducted by the Equality Tribunal, and if found guilty, the Employer may be ordered to pay compensation equivalent to up to 2 years pay to the Employee. The Equality Tribunal may also order the Employer to take a specified course of action, such as the provision of harassment and sexual harassment training to all Employees in the Organisation.
Bullying, Harassment and/or Sexual Harassment - How Would a Legal Case be Taken by an Employee?
An Employee who is bullied, harassed or sexually harassed at work may decide to terminate their employment, and claim that they had no option but to do so due to their Employer’s failure to provide a work environment free from bullying, harassment or sexual harassment. In such a case the Employee could claim that they were constructively dismissed. The argument the Employee would put forward is that they had no other option but to leave, and, therefore, they can claim that they were unfairly dismissed by their Employer. The Employee would bring the complaint to a Rights Commissioner or the Employment Appeals Tribunal and may be awarded compensation equivalent of up to 2 years pay to be paid by the ex-Employer.
Case 1 – Lack of Evidence to Substantiate Claim of Bullying – Special Olympics Ireland and a Worker (LCR20587)
This case concerned a claim by a Worker that she was bullied and harassed in the workplace, and resulting from this she was unfairly dismissed. The Claimant was employed from 16th January 2012 to the 8th November 2012, during which time she claimed she was bullied in a covert and overt manner. The Claimant complained verbally to the CEO but the bullying continued. The Claimant claimed she was left to complete unrealistic work objectives with inadequate resources, due to the unrealistic goals the Claimant worked additional hours which caused her severe stress and anxiety. The Claimant was not given adequate training in her first six months and was left to show another colleague how to complete tasks.
The Organisation advised that the Claimant received comprehensive training during the 6 month probationary period. The Organisation advised that shortcomings in performance persisted and following the second probation review the Claimant was advised she had not passed probation.
In relation to the allegation of bullying and harassment, the Court found that, as no written complaint was made in the course of the Claimant’s employment, no purpose would be served by commencing an investigation into the allegations made in this case. Accordingly the Court recommended that the parties reflect on the nature of the relationships that pertained over the course of the Claimant’s employment and take whatever steps were felt to be necessary and appropriate to address any issues that arose out of this reflection.
The Court found that the termination of the Claimant’s employment by the Respondent fell significantly short of good practice, and that the Claimant was unfairly treated in relation to the review of her suitability for employment, and the manner in which her employment was terminated. The Court found that the Respondent should pay the Claimant €9,750 compensation for loss suffered in full and final settlement for all issues in dispute.
This case highlights to Organisations the importance of following fair procedures in the probationary period and beyond. Also worth noting for Organisations, is the fact that due to no written complaint being received by the Organisation that there was no purpose to investigating a complaint at the point of the hearing, and instead the parties involved were asked to reflect on the nature of the relationship and to take necessary steps to address any issues arising out of the reflection.
Case 2 – Employer Duty of Care (Sweeney versus Balinteer Community School; 2011 IEHC 131)
Between September 2005 and September 2006, a series of decisions affecting the plaintiff, were taken by Dr. C. as principal teacher of a large community college (B.C.C.), in which the plaintiff was a senior member of the teaching staff. It was not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C. This finding was sustained by an Appeal Board. The Judge ruled that the Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
However the Court did examine the facts surrounding the decisions, and found that the facts were of residual importance to the case. The Court found that the relationship between the Plaintiff and the Principal showed ‘escalating mutual distrust between them as disagreement followed disagreement’. The Court noted that this got to the stage that the Plaintiff came to believe that, whether actually or perceived, that every action or omission on the part of the Principal was deliberate and a conscious effort by him to undermine her.
There were a number of events which were examined by the Court, including the Principal’s hiring of a Private Investigator to follow the Plaintiff, and an incident where the Plaintiff, having been unsuccessful in an application for an internal role appealed this decision, however whilst the Principal knew of the appeal sent a letter to the successful applicant congratulating them. The Court found that the Plaintiff reacted by deciding to have as little personal contact as possible with the Principal. The Court found that whilst the Plaintiff’s behavior was inappropriate and should not have been tolerated by her Employer, that the Principal had been at time, high-handed and inexcusable, and that he had behaved like ‘an offended tyrant’.
The Plaintiff submitted medical certificate for absences which indicated that she was absent due to work related stress and the Court found that the Employer should have known or reasonably foreseen that bullying or harassment of the Plaintiff carried a substantial risk of the Plaintiff suffering mental injury as a result.
The Court found that the behavior of the Principal towards the Plaintiff was oppressive and arrogant and abhorred this conduct. The Plaintiff was awarded for the personal injuries suffered in the sum of €60,000 for injuries suffered to date, and a further €15,000 in respect of personal injuries which may be suffered in the future.
This case highlights to Organisations that an Employer has a duty of care towards all Employees. An Organisation must manage and support very carefully an Employee who has submitted medical certificates which cite work related stress as a reason for absence, quite apart from the Organisation’s opinion as to the conduct of a particular Employee.
The following legislation and Codes of Practice should be considered when looking at Bullying, Harassment & Sexual Harassment;
- The Safety, Health and Welfare At Work Act, 2005
- The Employment Equality Acts, 1998-2012
- The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2007
- The Code of Practice on Sexual Harassment and Harassment at Work 2012
- The Code of Practice Detailing Procedures for Addressing Workplace Bullying 2002.
What is Workplace Bullying?
The Code of Practice on workplace bullying defines bullying 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.
Examples of bullying behaviour could include the following:
- Repeated inappropriate reprimand of an Employee, e.g. shouting at an Employee about their poor performance in an open plan office
- Repeated exclusion of an Employee from work related discussions
- Repeated unfair allocation of tasks or experience.
Please note that this list is not exhaustive.
What is Sexual Harassment?
The Employment Equality Acts define sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The unwanted conduct may consist of acts, requests, spoken words, gestures, or the production, display or circulation of written words, pictures or other material.
Examples of sexual harassment could include:
- Physical conduct of a sexual nature – This may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another Employee’s body, assault and coercive sexual intercourse.
- Verbal conduct of a sexual nature — This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments.
- Non-verbal conduct of a sexual nature — This may include the display of pornographic or sexually suggestive pictures, objects, written materials, emails, text messages or faxes. It may also include leering, whistling or making sexually suggestive gestures.
Please note that this list is not exhaustive.
What is Harassment?
Harassment is defined as any form of unwanted conduct relating to any of the discriminatory grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community, which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
A single incident may constitute harassment.
The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display, circulation of written words, pictures or other material.
Examples of harassment could include:
- Verbal harassment – jokes, comments, ridicule or songs
- Written harassment – including faxes, text messages, emails or notices
- Physical harassment – jostling, shoving or any form of assault
- Intimidatory harassment – gestures, posturing or threatening poses.
Please note that this list is not exhaustive.
Harassment and/or Sexual Harassment - How Would a Legal Case be Taken by an Employee?
An Employee may make a complaint related to harassment or sexual harassment to the Director of the Equality Tribunal.
Mediation is offered by the Equality Tribunal, with a view to the Employer and Employee agreeing on actions to resolve the situation and to agree a settlement. Mediation is conducted in private, thereby reducing the risk of negative exposure in the press and other media.
However, where the parties fail to achieve an agreed outcome, or mediation is refused, an Equality Officer may investigate the allegation. A hearing is conducted by the Equality Tribunal, and if found guilty, the Employer may be ordered to pay compensation equivalent to up to 2 years pay to the Employee. The Equality Tribunal may also order the Employer to take a specified course of action, such as the provision of harassment and sexual harassment training to all Employees in the Organisation.
Bullying, Harassment and/or Sexual Harassment - How Would a Legal Case be Taken by an Employee?
An Employee who is bullied, harassed or sexually harassed at work may decide to terminate their employment, and claim that they had no option but to do so due to their Employer’s failure to provide a work environment free from bullying, harassment or sexual harassment. In such a case the Employee could claim that they were constructively dismissed. The argument the Employee would put forward is that they had no other option but to leave, and, therefore, they can claim that they were unfairly dismissed by their Employer. The Employee would bring the complaint to a Rights Commissioner or the Employment Appeals Tribunal and may be awarded compensation equivalent of up to 2 years pay to be paid by the ex-Employer.
Case 1 – Lack of Evidence to Substantiate Claim of Bullying – Special Olympics Ireland and a Worker (LCR20587)
This case concerned a claim by a Worker that she was bullied and harassed in the workplace, and resulting from this she was unfairly dismissed. The Claimant was employed from 16th January 2012 to the 8th November 2012, during which time she claimed she was bullied in a covert and overt manner. The Claimant complained verbally to the CEO but the bullying continued. The Claimant claimed she was left to complete unrealistic work objectives with inadequate resources, due to the unrealistic goals the Claimant worked additional hours which caused her severe stress and anxiety. The Claimant was not given adequate training in her first six months and was left to show another colleague how to complete tasks.
The Organisation advised that the Claimant received comprehensive training during the 6 month probationary period. The Organisation advised that shortcomings in performance persisted and following the second probation review the Claimant was advised she had not passed probation.
In relation to the allegation of bullying and harassment, the Court found that, as no written complaint was made in the course of the Claimant’s employment, no purpose would be served by commencing an investigation into the allegations made in this case. Accordingly the Court recommended that the parties reflect on the nature of the relationships that pertained over the course of the Claimant’s employment and take whatever steps were felt to be necessary and appropriate to address any issues that arose out of this reflection.
The Court found that the termination of the Claimant’s employment by the Respondent fell significantly short of good practice, and that the Claimant was unfairly treated in relation to the review of her suitability for employment, and the manner in which her employment was terminated. The Court found that the Respondent should pay the Claimant €9,750 compensation for loss suffered in full and final settlement for all issues in dispute.
This case highlights to Organisations the importance of following fair procedures in the probationary period and beyond. Also worth noting for Organisations, is the fact that due to no written complaint being received by the Organisation that there was no purpose to investigating a complaint at the point of the hearing, and instead the parties involved were asked to reflect on the nature of the relationship and to take necessary steps to address any issues arising out of the reflection.
Case 2 – Employer Duty of Care (Sweeney versus Balinteer Community School; 2011 IEHC 131)
Between September 2005 and September 2006, a series of decisions affecting the plaintiff, were taken by Dr. C. as principal teacher of a large community college (B.C.C.), in which the plaintiff was a senior member of the teaching staff. It was not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C. This finding was sustained by an Appeal Board. The Judge ruled that the Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
However the Court did examine the facts surrounding the decisions, and found that the facts were of residual importance to the case. The Court found that the relationship between the Plaintiff and the Principal showed ‘escalating mutual distrust between them as disagreement followed disagreement’. The Court noted that this got to the stage that the Plaintiff came to believe that, whether actually or perceived, that every action or omission on the part of the Principal was deliberate and a conscious effort by him to undermine her.
There were a number of events which were examined by the Court, including the Principal’s hiring of a Private Investigator to follow the Plaintiff, and an incident where the Plaintiff, having been unsuccessful in an application for an internal role appealed this decision, however whilst the Principal knew of the appeal sent a letter to the successful applicant congratulating them. The Court found that the Plaintiff reacted by deciding to have as little personal contact as possible with the Principal. The Court found that whilst the Plaintiff’s behavior was inappropriate and should not have been tolerated by her Employer, that the Principal had been at time, high-handed and inexcusable, and that he had behaved like ‘an offended tyrant’.
The Plaintiff submitted medical certificate for absences which indicated that she was absent due to work related stress and the Court found that the Employer should have known or reasonably foreseen that bullying or harassment of the Plaintiff carried a substantial risk of the Plaintiff suffering mental injury as a result.
The Court found that the behavior of the Principal towards the Plaintiff was oppressive and arrogant and abhorred this conduct. The Plaintiff was awarded for the personal injuries suffered in the sum of €60,000 for injuries suffered to date, and a further €15,000 in respect of personal injuries which may be suffered in the future.
This case highlights to Organisations that an Employer has a duty of care towards all Employees. An Organisation must manage and support very carefully an Employee who has submitted medical certificates which cite work related stress as a reason for absence, quite apart from the Organisation’s opinion as to the conduct of a particular Employee.
