Bullying in the Irish Workplace-How to Deal with Bullying

Bullying in the Workplace
Midlands Anti Bullying Network,
Mullingar
A talk by Terry Gorry, October, 2015
http://EmploymentRightsIreland.com

Special Needs Assistant awarded
€255,276 for bullying
• In 2014 the High Court awarded an SNA
€255,276 in damages for pain and suffering
caused by bullying. She worked in a primary
school in Kildare.

This evening
• My talk this evening is going to show
1. you do not have to tolerate bullying
2. how to handle bullying at work
3. what avenues are legally open to you for
relief from bullying.

Pain of bullying
• The pain of bullying causes an enormous
number of people in the Irish workplace real,
gut wrenching distress.
• An ESRI study carried out in 2001 reported
that 1 in every 14 workers in Ireland has
experienced bullying.

Courts have recognised bullying
• Courts have recognised
psychological/psychiatric injuries caused by
bullying in a similar way to awarding damages
for an employee suffering a broken leg or arm
or other physical workplace injury
• A non physical injury arising from bullying can
be more painful than a broken leg or bad back

We will look at
• 1. what is bullying
• 2. what can you do about it-the remedies in
the workplace and outside
• 3. 2 court cases to see the legal principles in
bullying cases in the Courts

1. What is workplace bullying?
• “Code of Practice for Employers and Employees on the
Prevention and Resolution of Workplace Bullying”
from the Health and Safety Authority defines
workplace bullying at work 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. 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.’

Examples of bullying behaviour
The 2007 code provides a non exhaustive list describing
patterns of behaviour which are examples of bullying.
• undermining behaviour
• exclusion with negative consequences
• physical abuse
• verbal abuse
• aggression
• excessive monitoring of work
• humiliation
• and more.

Bullying by who?
• Bullying can be carried out by supervisors,
managers, subordinates, fellow employees,
customers, business contacts or members of
the public.

The HSA code
• It also describes the type of behaviour which
does not fall within the definition of bullying.
• The code sets out guidelines for developing
bullying prevention policies in the workplace
and sets out the risk assessment procedures
to be used in developing anti-bullying policies.

Not bullying
• One off incidents
• Harassment is discriminatory treatment of one
person by another because of a particular
characteristic which is protected by the
Employment Equality Acts 1998 to 2004 (for
example age, gender, marital status, sexual
orientation, religion, race, disability etc.)
• Reasonable and essential discipline in the
workplace is not bullying eg an employee whose
performance is continuously signalled as being
below target is not a victim of bullying.

Bad/Unprofessional Management
• Management is not bullying
• Management may be poor or unprofessional
• I see many employees who complain about
bullying by management
• But clarity is required here
• This does a disrespect to the real victims of
bullying

Guidance for employers/HR people
• The HSA code sets out detailed guidance in
relation to carrying out investigations of bullying
in the workplace which must follow natural justice
and fair procedures principles.
• The Code states that if the health and safety risk
assessment flags up bullying as a potential
problem in the workplace then the bullying
prevention policy must be included in the Safety
Statement of the business.
• Health and Safety website: www.hsa.ie

Bullying procedures
• The Code recommends dealing with cases
internally through the following processes
which are explained in the Code:
– informal resolution by a responsible person
– a formal complaints procedure.
Only if the internal processes fail, should it be
necessary to get outside support.

The outcome of a bullying complaint
the Code helps those involved to recognise the
possible findings which result from the follow up
and investigation of a bullying complaint where,
1. the complaint is upheld as bullying behaviour
2. the complaint is deemed to be unfounded as
a bullying behaviour
3. the complaint is deemed to be vexatious.

Legal status of code
• Following the code is not obligatory
• But the Code is admissible as evidence in
criminal proceedings under Health and Safety
Act, 2005
• For an employer it is just smart and sensible
to follow the code as it gives a great road map
to dealing with bullying
• Cost effective also-claims, absenteeism etc.

Factors signalling bullying at work
• High turnover of staff, high absenteeism or poor
morale
• Employment tenure – a bully may regard new,
casual or contract employees as easier targets
than permanent employees
• Hierarchies – hierarchies involving, for example,
technical or non-professional employees working
to professionally qualified employees which can
sometimes present higher levels of bullying

Bullying signals cont’d.
• Changes in the workplace – workplace
changes which can increase the risk include
change in ownership, new manager or
supervisor, introduction of new work
performance measures or of new technology
or internal re-organisation
• Poor management-no effective management
system which respects persons and monitors
and supports work relationships

Bullying signals cont’d.
• Personality differences – petty jealousies,
personal biases
• Gender/age imbalance
• Composition of the workforce
• History of tolerance of unacceptable
behaviour
• Inadequate procedures for dealing with
bullying in the workplace

Who bullies?
• Not definitive but those with..
• poor communication skills,
• difficulty in working with others,
• difficulty in delegating responsibility,
• poor organisational skills or
• low self-esteem

Workplace Safety Statement
• Every employer has an obligation to prepare a
safety statement (section 20, Safety, Health
and Welfare at Work Act 2005)
• This should also refer to bullying as a potential
health hazard in the workplace
• Just like any other safety hazard eg wet floor,
dangerous machine, heavy loads

Safety Statement
• Should state the management ethos or
attitude to the issue - a commitment to
dignity in the workplace.
• clearly outline what bullying is
• clearly outline the step by step procedure for
managing complaints
• identify an informal and formal process,
depending on each complaint

Employees have a duty
• Employees also have a duty to prevent bullying
• to behave and conduct themselves so as to
respect the right of employers and other
employees to dignity, courtesy and respect at
work
• to cooperate by providing any relevant
information when an allegation of bullying at
work is being looked into whether in an informal
or formal stage.

Identifying bullying as a hazard at
work?
• Has unacceptable behaviour been observed?
• Have substantiated complaints of bullying
been made by employees?
• Has HR or company doctor reported bullying?
• Is sick leave above the norm with work related
stress noted?

Anti Bullying Policy
• Employers can use the template from the
Health and Safety Authority to draft an anti
bullying policy
• Also Labour Relations Commission‘s Code of
Practice and
• Equality Authority‘s code of practice
• Or have one drawn up by a professional HR or
solicitor

Anti bullying policy
• Should set out employer’s commitment not to
tolerate bullying
• Should spell out the procedures to be
followed to deal with bullying
• Should state that complaints will be dealt with
sensitively and confidentially
• That person accused will be afforded natural
justice

The Scope of the Policy
• Describe what is bullying
• Give examples
• Give the name of the person who can be
approached with a complaint
• Assure that employees who complain will not
be victimised
• It should state the role of management, trade
unions, employees in preventing bullying

Communication of the policy
• The policy must be communicated clearly to
employees
• Training should also be provided to explain
policy
• It should be reviewed regularly

Access to contact person
• Employees should have access to a “contact”
person (and competent advisory services, if
necessary in smaller organisations)
• The contact person has a listening brief and is
not an advocate or judge
• Explains the policy and the procedure
• Is first point of contact, after the bully
• Complainant may not be comfortable
confronting bully

Procedures
• Informal
• Formal

Informal procedure
1. Complaint-contact person is given authority
by employer as “facilitator”; then a
designated person (with training and
expertise) should be assigned to specific
complaint
2. Intervention-ascertain facts, present them to
the alleged bully
Is mediation appropriate?

Informal procedure cont’d.
Record of all stages should be kept
3. Closure
If vexatious, can be progressed through
disciplinary procedure

Formal process
• Formal process to be used if informal does not
resolve or if bullying persists
• 1. Formal complaint
• 2. Give information to the person complained
against
• 3. Investigation-should be governed by terms
of reference, likely time scale, scope of
investigation (is it bullying? Is the complaint
upheld?)

Formal process cont’d.
• Written statements taken from all parties
• The objective of an investigation is to
ascertain whether or not, on the balance of
probabilities, the behaviours complained of
occurred
• Investigation should be conducted by a
designated member of management or an
agreed, external, third party
• Person should have experience and expertise

• Investigation should be confidential and
sensitive
• Both parties should be allowed have a work
colleague or trade union rep. attend at
meeting(s) with investigator
• Investigator to establish facts from the
evidence/witness statements

• The investigation should be completed as
quickly as possible, or to agreed timeframe
• Report should contain conclusions
• The employer and both parties should be
given a copy
• Employer should decide what action, if any,
should be taken and write to the parties

• Where complaint is upheld: this is a
disciplinary issue and the disciplinary
procedure should be followed
• It may also be appropriate to provide
counselling to one or both parties
• Where complaint is not upheld: no
victimisation against complainant..sympathy
• Malicious complaint? Disciplinary procedure

Appeals
• An appeal should be open to both parties at
conclusion of the formal process
• Appeal should be heard by another person,
preferably more senior
• Appeal should only focus on the specific
grounds of appeal though-it is not a complete
rehearing

Closure
• It may be necessary to try to have some type
of reconciliation to restore working
relationships
• These complaints/investigations can be
divisive, hurtful and damaging to reputations
and good name

Investigating Complaints-summary
• Not all complaints require investigation
• Where investigation required the principles of fair
procedure and natural justice should be applied
• All witnesses should be interviewed
• Accused is innocent until proven guilty
• Embarrassing for accused-employer should offer
support
• Confidentiality should apply throughout

Do you feel bullied?
• Try to look at situation objectively
• Is it really bullying?
• Is it repeated unwanted, inappropriate
behaviour?
• If you are feeling bad or a bit down it is easy
to misinterpret reasonable behaviour as
bullying
• Just because you feel unfairly treated or hurt
does not mean you are being bullied

Try to be objective
• Is it a personality clash?
• Is it reasonable and justified criticism of your
behaviour/conduct?
• Is the behaviour upsetting you for some other
(personal) reason?

What to do
• Tell the person that the behaviour is offensive
and hostile
• Clearly tell them you want them to stop and
enjoy a good working relationship
• If you feel you cannot do this make a note of
the behaviour and bring it to the attention of
a supervisor/manager/contact person
• Maintain confidentiality

Gather evidence
• Gather evidence, make notes, keep a diary
• Check the workplace anti bullying policy
• Report it to the contact person
• Should be dealt with informally at first
• Would mediation work?
• Formal investigation should then be carried
out if necessary

Inadequate response?
• Contact HSA (the Workplace Contact Unit)
(concerned with policy in the workplace)
• Contact Equality Tribunal (harassment)
• Contact Labour Relations Commission
(mediation possible)
• Contact solicitor

The Health and Safety Authority
• Its role is to monitor if employers and
employees are complying with the 2005 act
• It can direct that the procedures in the Code
be followed

2. Redress-remedies for the victim
• Bullying does not have to be tolerated.
• There are a number of avenues of redress

a) Sue employer for breach of
contract
The contract of employment will contain certain
terms-express or implied-
that the employer will maintain your trust and
confidence,
that he will take reasonable care for the health
and safety of his employees,
that he will provide a safe system of work,
that employees will be free in the workplace to
work free from bullying and harassment

Breach of contract?
•Failing to comply with these terms of
employment leaves the employer open to a
breach of contract claim

b) Personal injury claim
• The employer has a general duty of care towards
his employees under the law of torts (civil
wrongs).
• The employer may be guilty of the tort of
negligence if you are bullied at work as he may
not discharging his duty of care
• A claim for a personal injury arising from stress,
bullying or harassment fit more naturally into the
domain of tort law (civil wrong).
• This can be pursued as a personal injury claim.

Vicarious liability
• The employer will be held vicariously liable for
the actions of his employee in the workplace
• So, even if the employer is unaware of the
bullying he may still be held liable
• The bullying employee may not be a “mark” if
you are successful anyway
• So you will nearly always bring claim against
employer

PI claim goes to Injuries Board
• There is a trend in taking non physical injury claims as
personal injury claims. However, the Injuries Board
will not deal with it if it is a psychiatric/psychological
injury and will simply issue an authorisation to pursue
the claim through the Courts.
• So, you will need to bring legal proceedings in Court
• If there are multiple causes of stress, damages may be
apportioned to try to reflect the underlying cause eg
some stress arising from bullying, some stress arising
for personal reasons

To win a personal injury claim-tests
• 1. Has the employee suffered an injury-not
just occupational stress? For non physical
injury claims the injury needs to be a
psychiatrically recognised injury eg anxiety,
post traumatic stress, depression
• A specialist psychiatric report will be required

Workplace to blame?
•2. If he/she has suffered such an injury, is the
workplace to blame?

Forseeable?
• 3. If so, was the harm suffered by the
employee reasonably foreseeable by the
employer?

Duty of care
•4. If harm was forseeable, did the employer
fall below the standard of the reasonable and
prudent employer in addressing the needs of
this employee?
•Did the employer act reasonably?

c) Health and safety
• Broadly the employer's’ obligations can be
summarised under 5 categories including
• Providing safe systems of work
• Providing a safe place of work
• Plant and machinery that is safe and fit for
purpose
• Training and supervision
• A duty of care in the selection of fellow
employees.

The Safety, Health and Welfare at
Work Act, 2005
• sets out the broad framework of obligations and
responsibilities imposed on employers and employees
in the workplace in Ireland. The Act obliges employers
to do everything reasonably practicable to ensure the
safety, welfare and health of his employees.
• NOTE: “reasonably practicable” means
• “that an employer has exercised all due care by
putting in place the necessary protective and
preventative measures, having identified the hazards
and assessed the risks to safety and health…at the
place of work..”
• This is not a 100% guarantee, though

Criminal prosecutions of employer
• The Health Safety and Welfare at Work Act, 2005
provides for the criminal prosecution of offences.
• Section 78 of the Health Safety and Welfare at
Work Act, 2005 provides the penalties:
• (i) on summary conviction to a fine not exceeding
€3,000 or imprisonment for a term not exceeding
6 months or both, or
• (ii) on conviction on indictment to a fine not
exceeding €3,000,000 or imprisonment for a term
not exceeding 2 years or both.

Personal liability for directors
• Section 80 of the act provides for personal
liability for directors and officers of the
company.

d) Unfair dismissal (constructive
dismissal)
• The employee can also bring a case for constructive
dismissal/loss of earnings if he/she leaves the
employment because of the bullying, stress or
harassment; however this should be one of the last
options to exercise as the burden of proof
in constructive dismissal cases fall on the employee.
• Can be difficult cases to win, though
• In Riehn v Dublin Society for the Prevention of Cruelty
to Animals [2004] 15 ELR the employee resigned due
to stress caused by an excessive workload and was
awarded €30,000 in loss of earnings.

Other remedies
• A claim to Rights Commissioner service (now
Workplace Relations Service) under Industrial
Relations Acts 1967-2004

Venues to pursue claim arising from
bullying
• Workplace Relations service
• Employment Appeals Tribunal
• Labour Court
• Health and Safety Authority
• Civil Courts.

Equality tribunal
• A non physical injury could be classified as a
disability under the Employment Equality
Acts.
• If that is the case a claim to the Equality
Tribunal may also be possible for failure of the
employer to make “reasonable
accommodation” for the employee eg
alternative role possible?

Warning for employers
• Employers who do not have a workplace policy in place
dealing with issues like bullying and stress in the workplace
will have a hard time defending claims made against him as
it will be difficult to show that he has discharged his
statutory obligations.
• An employer can potentially face civil and criminal
proceedings for failure to provide a place of work that is
free from bullying.
• The presence (or absence) of workplace policies is
admissible in evidence in any civil or criminal proceedings
when such a dispute comes before a Court or tribunal such
as the Labour Court, Employment Appeals Tribunal or
Rights Commissioner.

Employer’s liability
• Employer’s liability arising from bullying,
stress, harassment claims arise:
• when the employer knew or ought to have
known the workplace was unsafe or that the
employee was at risk, and failed to do
anything about it.

3. Case law-the legal principles applied
by the Courts
• Ruffley -v- Board of Management St. Anne’s School, High Court,
2014
• 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.

Ruffley v Board of Management St.
Anne’s contd.
• “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.
• “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
• “The plaintiff was subjected to a disciplinary sanction of a severe kind
which was unmerited
• The manner in which the disciplinary process…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… irrational,.. 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 in Court

Judge O’Neill
• “The plaintiff has given evidence to me… 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.
• from around March 2010, she was suffering constantly from
headaches, insomnia, diarrhoea and high levels of anxiety.
• she eventually attended her General
Practitioner…complaining of… headaches all summer, that
she could not think straight, all related to a bullying issue at
school.
• The General Practitioner put all this down to stress related
to bullying.”

Judge O’Neill cont’d.
• “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.
• 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.”

Judge O’Neill
• “Prior to 2009, the plaintiff had two previous
episodes of Depression
• She required anti-depressive medication for
these but she recovered fully on both
occasions.”

• 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.

Judge O’Neill
• 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…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.

Judge O’Neill
• 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.

Judge O’Neill
• 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.”

Judge O’Neill
• “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.”
• “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.”

Identifiable psychiatric injury?
• “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.”

Compensatory damages
• “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.

Compensation
• Therefore, she must be compensated for her pain and
suffering in that regard to date and into the future.
• 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...the probability is
that she will improve and go on to recover over time,
..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.

Loss of earnings
• The plaintiff’s loss of earnings up to 6th March
2014 was agreed in the sum of €93,276.39.

Future loss of earnings & general
damages
• 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.(loss of earnings-present and future of
€140,276 and general damages of €115,000) ”

Glynn v Minister for Justice Equality
and Law Reform, 2014 High Court
• The claimant was a civil servant and worked in
Gort Garda station in Co. Galway. Her claim
was that she suffered stress as a result of
pressure placed on her in 2005 to complete
monthly accounts for the Garda station.

Occupational stress not actionable
• The High Court, Justice Kearns, observed:
• “…..bullying, workplace stress and occupational stress
are all things which, conceptually at least, are quite
different from each other, though on occasion they
can overlap and coincide. Occupational stress is not
actionable given that occupational stress is something
which every employed person may experience at
some stage of his or her working life and can occur for
reasons quite distinct from and unrelated to
bullying.…”

Workplace stress can be actionable
• The Court noted that workplace stress can be
actionable if certain criteria are met. However it is
different from bullying insofar as it lacks the
degree of deliberateness associated with bullying.
• “Workplace stress can also be the result of
negligence where excessive demands are made of
an employee or where complaints about
shortcomings in the workplace go unheeded. It
lacks however that degree of deliberateness
which is the hallmark of bullying”.

Questions to ask
• The Court said the following question should
be asked in relation to the claim of bullying:
• “whether the behaviour complained of, by
reference to an objective test, imports that
degree of calibrated inappropriateness and
repetition which differentiates bullying from
workplace stress or occupational stress“

Questions to ask re bullying claim
• It also referred to the legal definition of bullying set out
in Industrial Relations Act 1990 (Code of Practice Detailing
Procedures for Addressing Bullying in the Workplace)
(Declaration) Order 2002 (S.I. No. 17 of 2002) viz
“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, it is not
considered to be bullying.”

Objective test
• The Court noted that this definition required
an objective test to decide whether bullying
had occurred
• This means having the feeling that you are
being bullied is not enough
• A third party must be of this opinion based on
evidence

Had bullying occurred?
• The Court referred to Quigley v Complex Tooling
and Moulding Ltd [2009] 1 I.R. 349 and the
acceptance by the Supreme Court in that case of
the definition of bullying or harassment at work as
set out in S.I. No. 17 of 2002 above
• Justice Kearns observed that the relevant legal
principles for workplace stress were laid down
in Berber v Dunnes Stores [2009] E.L.R. 61 (which
accepted the practical propostions set out in the
2002 case Hatton V Sutherland [2002] 2 All E.R.1).

Once off incident, not repeated
• “the events upon which the plaintiff relies to
mount her claim turn on the events of a few
short days in May, 2005 a time span more
identifiable with a once-off or single incident
rather than the kind of ‘repetitive’ and
‘inappropriate’ conduct which constitutes the
wrong of workplace bullying or harassment“.

A One Off Event
• The court concluded that the plaintiff had not
made a case for bullying or workplace stress
causing or contributing to foreseeable injury
or damage. She had no complaints of
workplace stress for the eight years between
1997 and 2005.

Questions?
•Then I will wrap up

Summary
• Bullying is repeated, inappropriate behaviour
which could reasonably be regarded as
undermining the individual’s right to dignity at
work.
• Legal Remedies:
• Breach of contract
• Personal injury claim
• Health and safety report
• Constructive dismissal

Summary cont’d
• Personal injury claim proofs:
• Recognised psychiatric injury eg depression,
anxiety
• Caused by the workplace?
• Was it foreseeable?
• Did employer fail to act reasonably in
discharging duty of care?

What to do now
• Don’t tolerate bullying in work
• Seek professional advice
• Use the internal procedure in the workplace
(if any)
• Seek medical help, if necessary
• Seek legal advice, if necessary

Contact
• Terry Gorry & Co. Solicitors
• Main Street
• Enfield
• Co. Meath
• terry@businessandlegal.ie
• 046/95 49 614 or 086/81 21 797
• http://BusinessAndLegal.ie
• http://EmploymentRightsIreland.com

Bullying in the Irish Workplace-How to Deal with Bullying

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