A recent decision in the case of Catherine Hurley v An Post provides a very helpful and detailed outline as to the steps and duties owed by an employer in circumstances where an employee alleges bullying against a co-worker. The matter came before the High Court and was presided over by Mr. Justice McDermott.
In July 2006, the Plaintiff was involved in an incident where a co-worker became aggressive and came nose to nose with the Plaintiff. The Plaintiff met with her supervisor immediately after the incident and an Incident Report Form was completed. The Plaintiff was later brought home by another employee such was her level of upset. The Plaintiff did not return to work until the 15th of August 2006 by which time the other individual involved in the incident had been suspended. The other party involved in the incident had a long history of disciplinary issues and it later transpired that when he was suspended he refused to leave the premises and the Gardaí were called.
A petition was later signed by 96 of the 132 staff of An Post expressing their disgust at the treatment of the other employee and in August 2006, unofficial action without notice was taken by the members of staff. Mr. Justice McDermott stated that it was clear that the “high level of resentment was also reflected in the staff’s treatment of Mrs. Hurley when she attempted to return to work”.
Mr. Justice McDermott was fully satisfied that management were aware of this continuing isolation which was causing the Plaintiff stress. Mr. Justice McDermott was satisfied that this was subjected on the Plaintiff by her co-workers and it gravely affected her health. When the Plaintiff attempted to deal with the situation, An Post made few or little efforts to engage with her or to caution the work-force as to their treatment of Mrs. Hurley.
An Post later alleged that Mrs. Hurley failed to make a written complaint in accordance with the company’s code, however, Mr. Justice McDermott was of the view that this completely disregarded the advice given to Mrs. Hurley by local management who she attended on. Mrs. Hurley was told by the local management to adopt a wait and see approach.
The Court considered Section 8 of the Safety Health and Welfare at Work Act, 2005 and outlined every employer’s obligation to protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. An employer’s duty extends to managing and conducting work activities in such a way as to prevent any improper conduct or behaviour likely to put the safety, health or welfare at work of its employees at risk.
In considering the circumstances and the legislation, Mr. Justice McDermott was satisfied that what occurred to the Plaintiff was the legal definition of bullying as found in the Industrial Relations Act, 1990. 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 work”.
The Court was fully satisfied that the employer had failed in both his common law duty of care to the Plaintiff and furthermore it’s statutory duty pursuant to Section 8 of the Safety, Health and Welfare at Work Act. In particular, the Court drew reference to the fact that a code existed and while the Plaintiff tried to invoke it, the advice from local management was at all times to see if things would blow over.
This is a very important case for employers and in particular, it is important to have, at a very minimum, a detailed bullying and harassment policy in place which consists of a code of practice. The policy must be enshrined in all employees and in particular managers so as when a complaint is made, the appropriate steps are taken in accordance with the policy.
It is essential for employers to be immediate and proactive when dealing with any issues concerning bullying. Employees should always be encouraged to make a complaint and the procedure should be discussed with them in detail and all employees should be fully comfortable with the process.
An employer’s duty does not stop once a complaint has been made. There are obvious obligations to investigate and to ensure that no further victimisation occurs when an employee makes a complaint.