BY Gerry McMahon
The recent Court of Appeal decision reversing a High Court award of €255,000 to an employee at a national school in Kildare has brought the thorny topic of bullying and harassment at work back into the limelight.
The extent of bullying at work may be reflected in a Samaritans’ survey across Ireland and Britain which found that four out of five workers had been bullied during their careers. Indeed the list of organisations to have found themselves in disrepute from such practices reads like a Who’s Who of eminent Irish employers.
What Is Bullying?
Though most bullying takes the form of verbal abuse and insults, it can also extend to setting unrealistic work targets, devaluing work done, depriving staff of responsibility, cyberbullying and social exclusion.
Remote though the latter form may seem, it’s exactly what the Employment Appeals Tribunal found Dunnes Stores to have done with its head of security, by moving him from his office at group headquarters to a small room under a staircase at the ILAC Centre.
It is also notable that - as a recruitment agency recently discovered - bullying and harassment type behaviour will be judged inappropriate even if it occurs outside normal working hours. In this case, behaviour at an after-work drinks’ session accompanied by late night offensive text messages did not sit easy with the Tribunal. Nor is it an excuse for the accused to claim that they were ‘only having the craic’, as the effect is what’s important, not the intent.
In Association with
In the aforementioned Court of Appeal case, the judgement held that the definition of bullying had been ‘stretched beyond breaking point’ as it entailed ‘a botched disciplinary issue’, as opposed to being a case of ‘repeated offensive behaviour intended to destroy the plaintiff’s dignity at work’.
Make Haste Cautiously
Numerous employers have found themselves in legal ‘hot water’ for making a mess of their investigation of complaints. For example, back in 2002 the Labour Court held against the Central Remedial Clinic for failing to allow an employee to progress a case via the Labour Court’s services.
In the following year, Aer Lingus was informed by the Labour Relations Commission that their ‘bullying investigation was flawed’, including such ‘flaws’ as allowing the accused to escort witnesses to the investigation hearing. Shortly thereafter, the Labour Court informed An Post that a harassment claim had ‘not been satisfactorily investigated’, as the basic ‘principles of natural justice’ were denied the claimant.
In 2006 the Health Service Executive had to pay out €40,000 for the manner of its investigation, which the Rights Commissioner found ‘unacceptable’, as it allowed the investigation ‘to fail due to the non-co-operation by the person against whom the allegations had been made’.
Proof Test
Unlike the criminal law arena, where allegations have to be proven beyond reasonable doubt, when it comes to bullying and harassment, adjudication is based upon the less strenuous test of the balance of probabilities.
The implications of this are evident from a Labour Court case last year involving Tesco, where a sales assistant alleged harassment by an older male colleague. Despite claims that she was ‘subjected to a stream of verbal and physical sexual harassment’ which ‘became more serious as time went on and involved unwanted bodily contact’, there were no witnesses and the allegations were totally denied.
In the absence of independent witnesses, the Labour Court was confounded by the ‘clear contradiction in almost every detail between the appellant and her alleged harasser, leading to a conflict of evidence under oath’. Dealing with the evidence on the basis of a balance of probabilities, the tribunal concluded ‘that some incident, or incidents, must have taken place’ and awarded the claimant €8,000.
In a separate case, the Circuit Civil Court heard about an employer accused of bum pinching and asking his friend (in the young female employee’s office) if he wanted ‘a coffee, a tea or a blow job’. The boss was also accused of staring at her genital parts and bending over her to stare down her blouse. Despite the conflict of evidence and the absence of corroborative witnesses, the Court awarded €10,000 damages to the claimant on the ‘balance of probabilities’ for bullying and sexual harassment.
Management Dilemma
For many working in a managerial capacity, the fear of facing a bullying charge arising from their attempts ‘to get the job done’ is real and genuine. In fact the Independent Monitoring Group for the Defence Forces reported in 2009 that ‘the pendulum may have swung too far in one direction; the result may be that the essential robust nature of military training is in danger of being lost’.
However, on this important performance management issue, there is legal precedent to the effect that allegations of bullying cannot mask unsatisfactory work performance.
The Lessons
The current legal scenario associated with this subject can fairly be described as a maze, with precedents surfacing under industrial relations, equality, dismissal and\or health and safety type statute laws, complicated further by three discrete state-agency issued Codes of Practice.
The best way for employers to minimise if not avoid legal exposure to allegations of bullying or harassment is to is to ensure that:
• They possess an up to date and readily available policy and procedure in respect of dignity at work. Eddie Rocket’s recently fell foul of this provision, when the Equality Tribunal awarded two lesbian employees (who quit after two weeks) €15,000, as reasonable steps – including a failure to communicate the policy – had not been taken by the employer.
• Staff are trained in respect of this policy and procedure and are made fully aware of their personal responsibilities in respect of same.
• In the event of allegations, the employer faithfully applies the written company policy and procedure.
Dr Gerard McMahon is a lecturer and consultant in H.R.M. at the Faculty of Business, D.I.T. He is author of Successful Performance Management, published by The Liffey Press
