Do you Dread going to work because of the way in which you are being treated there? Are you being bullied at work?
Do you lie awake at night or wake up in the morning with a sick stomach, worrying and contemplating what it is that’s going to be thrown at you next?
That’s not right and you shouldn’t have to tolerate bullying or harassment at work.
Everyone is entitled to a safe and supportive workplace.
If you’ve been or are currently experiencing bullying or harassment in the workplace, we can help!
Every day of the week we hear stories and act for Clients in similar situations to this.
WHAT ARE YOUR RIGHTS?
Too many people suffer in silence when experiencing bullying and harassment at work. It seems to be that especially in times of financial crisis, people suffering from workplace stress put up with it, out of fear of losing their job.
However, talking to us could lift some of the weight of the stress you are carrying from your shoulders.
It seems that part of the reason that people put up with it is that workplace bullying has become ‘the norm’. People turn a blind eye to it and over time it may be even be encouraged not just ignored by other work colleagues. Maybe they are even relieved it is not them being bullied or are fearful for their own jobs.
HOW DO YOU KNOW YOU ARE BEING BULLIED AT WORK?
It pays to take a step back and look at what the definition of bullying is. In it’s most simple form “Bullying is repeated inappropriate behaviour that undermines your right to dignity at work.”
Bullying at work includes:
- “Social exclusion and isolation;
- Damaging someone’s reputation by gossip or rumours;
- Aggressive or obscene language;
- Repeated requests with impossible tasks or targets;
- Unfair scrutiny or criticism;
- Physical violence.
HERE’S HOW IT WORKS IN PRACTICE.
Our Client BM was working as software developer with a well-known International software company. She was a top performer in the company and always had great appraisals and bonuses. She got on well with her work colleagues and management and was on the fast-track up the corporate ladder.
All of a sudden nothing she did was right, she was criticised in team meetings, humiliated in front of work colleagues, isolated by her line manager and her appraisals became below par. BM was side-lined. As far as she could see nothing had changed in her work performance.
In reality, what had changed was that BM’s former line manager had been promoted and the new manager she was reporting into saw her as a threat. Maybe there was some sort of personality clash but despite raising the issue internally the Company failed to address the problem and BM ended up suffering severe work-related stress and taking a prolonged period of sick leave. BM was diagnosed with depression and eventually resigned her position and came to us for help.
We initiated a claim for her with the Workplace Relations Commission for constructive dismissal and under the Employment Equality Acts and in the High Court for personal injury. We drafted the pleadings and her submissions, corresponded with her former employer and their solicitors on her behalf. This allowed BM to get on with her life and focus on getting better.
Her former employer initially fought their corner, saying that the changes BM experienced were unconnected to her personally and were simply performance and competency-based, they denied that there was any inappropriate treatment of her.
This was complete nonsense and they eventually conceded and agreed and acknowledged that BM had been wronged. They paid BM compensation and gave her a glowing reference.
“This was really a point of principal for me. Sure I was compensated but money will never make up for what I lost. I just wanted my former employer to know what had happened, they were a good company really and my boss was just a bad egg but they handled it all really badly. If it wasn’t for Employment Matters I could never have done this. Now I can get on with my life”
BM, 42, Lucan
WHAT TO DO NEXT
You must move quickly as generally there is a 6-month time limit on taking a claim in the Workplace Relations Commission.
Call us now on 051 841 641 for a free no-obligation consultation or to arrange an appointment with us to review your case, or fill out our online form and a member of our staff will get in touch with you as soon as possible.
Don’t put up with this type of treatment, make sure your employer knows that you won’t tolerate it and make your voice heard.
Whether you are seeking general advice regarding your Employment Rights when you are being badly treated in work or if you are concerned that your rights may have been infringed, it is important to take action now.
Read more below to find out more about:
- What is bullying?
- Definition of Bullying in the Workplace
- Prevention of Workplace Bullying
- Safety Health & Welfare at Work Act 2005
- Personal Injury and Mental Distress
- Duty of Care
What is Bullying?
Bullying in the workplace is becoming more prevalent with more and more employees seeking redress in the Courts for the injuries they have suffered at the hands of bullies.
Bullying can take many forms and although only now appearing on our radar it would seem to have been always present. It is only now that we have been provided with some tools to help tackle the unsavoury outcome of bullying.
In fact in employment law, there are no specific legal provisions for dealing with bullying in itself.
It is, unfortunately, only through other aspects of the law, that we can address an employer’s conduct or negligence. Currently, the main routes to protect an employee are by way of the Safety, Health and Welfare at Work Act 2005, the Unfair Dismissals Acts and on Personal Injury grounds.
It is easily noted and a criticism of the law that all of these address the matter after the occurrence of bullying. Although the Labour Relations Commission has published guides and best practice recommendations there is currently no specific legislation which assists an employee who is experiencing bullying in the workplace.
Thus an employee experiencing such treatment has to either claim constructive dismissal under Unfair Dismissals legislation or seek to achieve redress as a result of the Personal Injury caused by this treatment. The Safety Health and Welfare at Work has tried to redress some of the imbalance but still does not provide enough protection for an employee.
Due to the current economic times, many workplaces have seen significant re-organisation and many employers find themselves under heightened economic pressures to perform. Unfortunately we see this more and more resulting in unfair pressures on and even abuse of employees amounting to bullying.
Definition of Bullying in the Workplace
“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.”
Report by the Task Force on the Prevention of Workplace Bullying
Thus bullying is repeated inappropriate behaviour, which could be reasonably regarded as undermining the individual’s right to dignity at work. The two key aspects being that it is repeated, that is, happens on more than one occasion, and is inappropriate.
Bullying, however, does not include reasonable and essential discipline which arises from good management of the performance of an employee at work or actions taken which can be justified as regards the safety, health and welfare of employees.
Judge Brian McMahon has stated that the duty of the employer to his employee extends to protecting him from nonphysical injuries such as a psychiatric or mental illness resulting from neglect or harassment or bullying in the workplace.
This view was endorsed by Judge Laffoy in the High Court in 2005 finding that it is necessary for the employee to prove a breach of statutory duty that resulted in loss or damage and that such a loss was reasonably foreseeable.
The Safety, Health and Welfare at Work Act 2005
The 2005 Safety Health and Welfare at Work Act now places a clear obligation on employers to prepare a risk assessment which might address the risk of bullying in the workplace. The employer is now under a duty expressly to manage the system of work so as to protect against bullying.
In particular Section 22 (1) of the Act provides for health surveillance and this would suggest that in the absence of safety management systems, including health surveillance, it becomes increasingly difficult for an employer to defend that risk to the health of an employee from bullying was not foreseeable.
There is now, it would seem, a duty to ensure that employees are not exposed to a risk of injury to their safety, health or welfare as opposed to actual injury.
This would suggest that the use of ‘reasonably practical’ is more onerous for an employer than the traditional onus in negligence. This definition poses a very high standard on employers by obliging them to show that they have taken all reasonably foreseeable steps against risk.
Therefore it would now seem to be easier to seek damages for a breach of the statutory duty under the 2005 Act than to rely on the traditional negligence route. The problem here of course is that this only applies after an employee has experienced an injury.
Section 27 of the Safety, Health and Welfare at Work Act 2005 –Penalisation
Section 27 of the Act also provides for a prohibition on penalisation or victimisation of employees and provides the Rights Commissioner with unlimited jurisdiction to award damages were penalisation has occurred.
Again, this does not amount to a protection as penalisation must have occurred for the employee to have a cause of action. Penalisation includes actions taken by the employer which are clearly to the detriment of the employee and includes such actions as suspension or dismissal.
It also includes actions which an employer might not consider to amount to penalisation such as the transfer of duties, change of location of work or coercion and intimidation.
An employee claiming under this provision must show that the penalisation complained of arose as a result of the complaint made.
Of course, the implied term of mutual trust and confidence in the employment contract continues to be critical in this area both from the perspective of Unfair Dismissal as well as personal injury*.
Personal Injury* and Mental Distress
Like any physical injury caused by another, an individual is entitled to claim for mental injury caused by another’s negligence.
The conventional claim in this area is for personal injury* arising from a breach of duty borne by the employer. Bullying and personal injury* must be distinguished from workplace stress which is a situation where the demands or person exceeded their capacity to meet them. It has never been the law that the employer is under a duty to provide a stress free environment, however, an employer must conduct his business as a prudent and reasonable employer.
Therefore as noted there is a duty to monitor risk in so far as is reasonably practicable and possible to prevent injury from occurring.
Duty of Care
Normally in Tort the employer is held to owe a duty of care to the employee and it must be demonstrated that therehas been a breach of that duty and that as a result of that breach injury was foreseeable, the injury occurred andthat injury was caused by that breach.
The key case in this area was Walker Vs Northumberland County Council, a 1995 English case where the applicant had suffered two nervous breakdowns as a result of the stress he experienced at work. Having returned to work in the aftermath of the first breakdown the applicant was initially promised additional resources, support and assistance in regard to the large workload and pressures of work. Although at the outset some new support was provided, this support quickly fell away and as a result the applicant suffered a second breakdown six months later.
The court held that the respondent was not guilty in respect of the first breakdown but was guilty in respect of the second. The court’s view was that the respondent at that stage was clearly aware of the danger of harm to the Applicant. The Court insisted that the employer should have taken preventive measures notwithstanding that this may have caused substantial disruption in the workplace. Importantly the court looked at foresee-ability and reasonableness in detail.
Generally, the defences offered in such a case related to the likelihood and cause of injury and the foreseeability ofsuch an injury. The Respondent may also seek to establish that the applicant was suffering from stress or is outside of his work life. It may be the case that the employee refused to accept that he was ill and worked on regardless. The Respondent in effect is attempting to distance themselves from the cause of the injury which is often the most difficult obstacle to overcome. A Plaintiff of course must always establish that the injury was caused by the Defendant.
It would now seem to be the case that there must be a degree of guilty knowledge on behalf of the employer and that the knowledge of possible injury was ignored to the employee’s detriment.
One of the seminal cases in this jurisdiction is McGrath Vs Trintech. In this case a number of steps were established as a test as follows:
It must be established that there is actual medical evidence that was actual loss or injury.
- The plaintiff suffered actual injury not just occupational stress
- As a matter of probability the injury must be attributable at least in part to stress at work.
Has there been a breach of the statute? This means establishing only that the employer was unreasonable or did not take reasonable steps. Was there foreseeability of harm? This involves establishing whether the employer knew or ought to have known of the risk of harm at the relevant time.
The issue is not whether the stress the plaintiff suffered was caused by work, but whether the stress induced injury was a consequence of a breach by the defendant of its statutory duty.
The Irish Courts do acknowledge that Employers owe their employees a duty of care with respect to mental distress and non-physical personal injuries the onus placed on employers is significant and potentially serious if ignored.