EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT - Bullying, Harassment and Sexual Harassment – The implications on Investigations
Allegations of bullying, harassment and sexual harassment at work are issues that will unfortunately face almost every Organisation at one time or another. This can be a difficult and challenging for an Organisation to deal with, and can present exposure to serious liability, cost and reputational damage where they are not dealt with correctly.
Investigation into such allegations are typically lengthy in nature and time consuming, and even where addressed appropriately can result in a number of damaging consequences, both at an individual and Organisational level.
From an Employers perspective, it is critical to fully understand their obligations as it relates to the legislation, relevant codes of practice, and the key differences between bullying, harassment and sexual harassment conduct / behaviour.
At a minimum Employer obligations’ includes the requirement to:
The formal procedure involves a written complaint being submitted to the Employer, which may then be investigated.
Employers must note that it is at the discretion of the Employee who feels that he/she is a victim of bullying or harassment to decide which approach they feel is appropriate in the given circumstances. There is no obligation on the person to commence with the informal procedure.
In all instances in which an allegation arises, and in line with the principles of fairness and natural justice, there should be no inference of guilt against the alleged perpetrator who should be afforded a fair opportunity to respond to the allegation(s) raised.
There have been a number of cases that have occurred in recent years that have had a large impact on what bullying in the Workplace means and how Organisation should deal with this.
The case of ‘Ruffley v The Board of Management of Saint Anne’s School’ is one. The importance of this case is demonstrated by the Supreme Court’s own acknowledgment that “at some level, this novel case will set a benchmark for all bullying claims”. This case arose from the imposition, in January 2010, of a disciplinary sanction against a Special Needs Assistant (Ms Ruffley) by the Board of Management of St Anne’s School. Ms Ruffley claimed to have been bullied in the course of the disciplinary process, resulting in a serious impact on her mental health, and in respect of which she sought to recover substantial damages in the High Court.
In 2014, the High Court made an aggregate damages award of €255,276 in favour of Ms Ruffley. However, the judgment was subsequently appealed to the Court of Appeal, and was overturned by a 2:1 majority, finding in favour of the appeal. While acknowledging the fact that “the Board may have conducted the investigative and disciplinary process in [a] hopelessly flawed manner”, it was concluded that “on the facts of this particular case, objectively ascertained, the defendant could not be considered 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”. In particular, it was considered that in order to constitute repetition, the events relied upon had to be reasonably proximate to each other.
Another case is the ‘Lyons v Longford Westmeath ETB’ decision that was issued last year, it has a big impact on Organisations today, and how they carry out their internal investigations.
The case of Lyons was in respect of a workplace investigation that was carried out by an external HR Company, into allegations of bullying against a school's deputy principal. The outcome of this investigation process included findings of bullying against the principal. The principal was subsequently invited to a disciplinary meeting, at which dismissal and/or suspension were expressly set out to be among the possible outcomes. While the principal was afforded the opportunity to submit his written response to the complaints and to attend interviews during the investigation, he was not entitled to cross-examine his accuser nor was he afforded the right to legal representation. He therefore challenged the fairness of the investigation process in the High Court on these two grounds.
In the course of the Court’s decision, it was held that where the investigative process can lead to dismissal, "cross-examination is a vital safeguard to ensure fair procedure". It was also held that, given that the findings of the investigator could impact on the principal's good name, he should have been entitled to legal representation during the investigation process.
In that case, the result of the investigation was that irreversible and serious "findings" of bullying were made against the principal and the potential outcome was that the principal could have been dismissed.
Following on from the Lyons Case, two more High Court decisions, ‘E.G v Society of Actuaries Ireland’ and ‘N.M v Limerick and Clare Education and Training Board’ each confirmed that the full suite of natural justice rights, including an opportunity to cross-examine witnesses, did not need to be conferred on Employees where an investigation essentially amounts to an information gathering exercise. Particular focus is afforded to the necessity to ensure full and fair procedures which may include the right to cross-examine and the right to legal representation – but, crucially, in the context of an investigation that exceeds the parameters of a simple fact-finding investigation.
As a result, it is not the case that an Employee must be entitled to cross-examine in all workplace investigations. Whether or not such a right arises will very much depend on the scope of the investigation and the seriousness of the allegations in issue.
The Employee should be provided with the opportunity to cross-examine at the disciplinary hearing stage given that this is the point at which such findings may trigger consequences adverse to the Employee.
It is important for all Employers to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees. In order to reduce the risk of exposure to liability, the Employer must be able to demonstrate that reasonable steps have been taken to eliminate bullying or harassment occurring, and where a complaint arises, that appropriate steps are taken, in line with the internal policy and procedures to address any complaint raised and prevent any further recurrence.
Investigation into such allegations are typically lengthy in nature and time consuming, and even where addressed appropriately can result in a number of damaging consequences, both at an individual and Organisational level.
From an Employers perspective, it is critical to fully understand their obligations as it relates to the legislation, relevant codes of practice, and the key differences between bullying, harassment and sexual harassment conduct / behaviour.
At a minimum Employer obligations’ includes the requirement to:
- Take reasonable steps to prevent bullying, harassment or sexual harassment occurring in the workplace.
- Protect Employees from the alleged behaviours of their colleagues, members of management as well as other business contacts, e.g. suppliers or customers.
The formal procedure involves a written complaint being submitted to the Employer, which may then be investigated.
Employers must note that it is at the discretion of the Employee who feels that he/she is a victim of bullying or harassment to decide which approach they feel is appropriate in the given circumstances. There is no obligation on the person to commence with the informal procedure.
In all instances in which an allegation arises, and in line with the principles of fairness and natural justice, there should be no inference of guilt against the alleged perpetrator who should be afforded a fair opportunity to respond to the allegation(s) raised.
There have been a number of cases that have occurred in recent years that have had a large impact on what bullying in the Workplace means and how Organisation should deal with this.
The case of ‘Ruffley v The Board of Management of Saint Anne’s School’ is one. The importance of this case is demonstrated by the Supreme Court’s own acknowledgment that “at some level, this novel case will set a benchmark for all bullying claims”. This case arose from the imposition, in January 2010, of a disciplinary sanction against a Special Needs Assistant (Ms Ruffley) by the Board of Management of St Anne’s School. Ms Ruffley claimed to have been bullied in the course of the disciplinary process, resulting in a serious impact on her mental health, and in respect of which she sought to recover substantial damages in the High Court.
In 2014, the High Court made an aggregate damages award of €255,276 in favour of Ms Ruffley. However, the judgment was subsequently appealed to the Court of Appeal, and was overturned by a 2:1 majority, finding in favour of the appeal. While acknowledging the fact that “the Board may have conducted the investigative and disciplinary process in [a] hopelessly flawed manner”, it was concluded that “on the facts of this particular case, objectively ascertained, the defendant could not be considered 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”. In particular, it was considered that in order to constitute repetition, the events relied upon had to be reasonably proximate to each other.
Another case is the ‘Lyons v Longford Westmeath ETB’ decision that was issued last year, it has a big impact on Organisations today, and how they carry out their internal investigations.
The case of Lyons was in respect of a workplace investigation that was carried out by an external HR Company, into allegations of bullying against a school's deputy principal. The outcome of this investigation process included findings of bullying against the principal. The principal was subsequently invited to a disciplinary meeting, at which dismissal and/or suspension were expressly set out to be among the possible outcomes. While the principal was afforded the opportunity to submit his written response to the complaints and to attend interviews during the investigation, he was not entitled to cross-examine his accuser nor was he afforded the right to legal representation. He therefore challenged the fairness of the investigation process in the High Court on these two grounds.
In the course of the Court’s decision, it was held that where the investigative process can lead to dismissal, "cross-examination is a vital safeguard to ensure fair procedure". It was also held that, given that the findings of the investigator could impact on the principal's good name, he should have been entitled to legal representation during the investigation process.
In that case, the result of the investigation was that irreversible and serious "findings" of bullying were made against the principal and the potential outcome was that the principal could have been dismissed.
Following on from the Lyons Case, two more High Court decisions, ‘E.G v Society of Actuaries Ireland’ and ‘N.M v Limerick and Clare Education and Training Board’ each confirmed that the full suite of natural justice rights, including an opportunity to cross-examine witnesses, did not need to be conferred on Employees where an investigation essentially amounts to an information gathering exercise. Particular focus is afforded to the necessity to ensure full and fair procedures which may include the right to cross-examine and the right to legal representation – but, crucially, in the context of an investigation that exceeds the parameters of a simple fact-finding investigation.
As a result, it is not the case that an Employee must be entitled to cross-examine in all workplace investigations. Whether or not such a right arises will very much depend on the scope of the investigation and the seriousness of the allegations in issue.
The Employee should be provided with the opportunity to cross-examine at the disciplinary hearing stage given that this is the point at which such findings may trigger consequences adverse to the Employee.
It is important for all Employers to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees. In order to reduce the risk of exposure to liability, the Employer must be able to demonstrate that reasonable steps have been taken to eliminate bullying or harassment occurring, and where a complaint arises, that appropriate steps are taken, in line with the internal policy and procedures to address any complaint raised and prevent any further recurrence.
