Of all the employment inquiries I receive, work place bullying is by far the most common. Unlike most other aspects of employment law (e.g. hours of work, payment of wages), there is no* legislation which allows an employee to make a complaint of workplace bullying to the Workplace Relations Commission.
Rather, an employee must utilise their employer’s grievance procedure, enabling the employer to investigate the complaint and take remedial action, if appropriate. If an employee does not do this and subsequently resigns and attempts to bring a constructive dismissal case, it will most likely fail.
In some cases, as a direct result of workplace bullying, a personal injury can occur. This injury must be an identifiable psychiatric injury, as certified by a doctor. Work related stress is NOT an identifiable psychiatric injury. Even if an employee can prove that they have suffered from an identifiable psychiatric injury as a result of workplace incidents, this does not always mean the employee has been a victim of bullying.
A recent Supreme Court Decision in the case of UNA RUFFLEY –V- THE BOARD OF MANAGEMENT OF ST. ANNE’S SCHOOL has laid definitive guidelines in assessing what constitutes workplace bullying. Among some comments made by Judge O’Donnell were:
• An employee must distinguish between bullying and an employer merely being tough on an employee. An employer is entitled to expect ordinary robustness from its employees.
• You can have fair procedures and a resulting fair disciplinary action but conducted for malicious reasons. This could be bullying.
• Similarly, you can have unfair procedures resulting in unfair disciplinary action but carried out with good intentions – this may not be bullying and certainly does not always mean damages accrue to the employee.
In this case, the core issue to consider was whether a claim of unfair procedures conducted by the employer leading to an unfair result could amount to bullying.
He indicated that the correct test to assess if bullying has taken place is:
Was the action complained of ‘Repeated inappropriate behaviour capable of undermining an employee’s right to dignity at work’.
This test includes all of the 3 separate and distinct components, considered together:
• Repeated behaviour – a pattern of behaviour, not just a number of incidents;
• Inappropriate behaviour – not just wrong, but inappropriate at a human level;
• Behaviour capable of undermining an employee’s dignity at work – not just inappropriate or offensive.
In summary, to mount a successful personal injury claim arising from workplace bullying, an employee must have suffered from an identifiable psychiatric injury caused by repeated inappropriate behaviour capable of undermining an employee’s right to dignity at work.
* (with one limited exception) Under Health and Safety legislation, if an employee makes a complaint pursuant to the act, and is subsequently penalised for making the complaint, they may be able to mount a bullying claim.
Julie Mullan, solicitor, has extensive experience on all advising employers and employees alike.
If you have any questions about employments matters, Julie can advise you. Please get in touch.