Mayday, Mayday, workplace bullying continues to elude justice!

By David Byrnes

Barrister and Employment Law Specialist

____________________________________

Mayday, Mayday, workplace bullying continues to elude justice!

On May Day (1st May) we joined in celebrating worker’s rights. Bullying has featured heavily in national and international news of late, for all of the wrong reasons.

One of the most high-profile reports involved the resignation by Dominic Raab as both Deputy Prime Minister and Justice Secretary on 21 April 2023, after an independent investigation found that his behaviour towards civil servants at the Ministry of Justice and at the Foreign, Commonwealth and Development Office had amounted to bullying in two cases.

Although workplace bullying has been outlawed since 2005, did you know that a victim of bullying in the workplace still has no access to a direct legal remedy in the Workplace Relations Commission? A similar position exists in the courts.

The courts and employment tribunals have attempted to grabble with quasi-remedies which were never specifically designed for nor envisaged to deal with workplace bullying.

Section 8(2)(b) of the Safety, Health and Welfare at Work Act 2005 (2005 Act) imposes on all employers the duty of "managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk".

Since bullying comes within the scope of this legislation a relatively simple and straight forward solution would be to make an amendment to provide for a free-standing and tailored remedy in the WRC and the courts.

It is surprising that this remarkable omission occurred in the first place and is allowed, by consecutive ministers and senior civil servants with responsibility for this particular area, to continue for almost two decades.

Bullying is an egregious wrongdoing which is outlawed for good reason. The requirement to provide an effective remedy is enshrined in EU law and the European Convention on Human Rights.

Employees can bring a free-standing claim for other infractions of their employment and related human rights on grounds of discrimination, whistleblower penalisation, non-payment of wages, working time and unfair dismissal. So why not bullying?

There can be no good reason for why the WRC and the courts are not vested with specific jurisdiction to hear and determine claims for alleged bullying and to make binding enforceable awards for well-founded claims.

The lack of a specific remedy against what is already an unlawful workplace practice represents a long-standing lacuna in Irish employment law which must be plugged as a matter of priority.

It is the cause of an ongoing injustice.

The Workplace Relations Commission

The WRC is the independent statutory body established in October 2015 which replaced and consolidated all other first instance tribunals that formally existed to adjudicate on the myriad of workplace related disputes. It allows for an appeal to be made to the Labour Court.

The WRC operates informally and somewhat summarily, and it aims to avoid the complexity, delay and stress which is inherent in litigation. Employees cannot recover their legal costs even if they win their case. The quid pro quo seems to be the avoidance of exposure to costs if the employee losses a claim.

Psychosocial Risks and Stressors

From a workplace perspective, the Health and Safety Authority has recently described psychosocial as referring to “the hidden workplace”.

Psychosocial working environment is the collective term that covers the interaction between humans in a workplace, the work of the individual and its impact on the employee, organisational conditions and the culture of the organisation.

Psychosocial risks and stressors at work encompasses bulling as well as discrimination, victimisation, harassment to include that of a sexual nature and of the penalisation of whistleblowers.

These are various and differing egregious wrongdoings which can and do overlap and coincide.

The workplace provides a complex environment where inherent power imbalances exist, and which can be abused. Bullying can also occur at peer-to-peer level and subordinates can bully their superiors.

It seems that bullying is blind to rank, grade and status.

It can be especially difficult for employees who serve in a rank or grade system to include our civil and wider public services. Reports or biographies have shown that members of the judiciary and our police force are not immune to being bullied at work.

The independent Women of Honour Report highlighted that the abuse of our military personnel often occurred by those of a higher rank who held a position of power over them in what was and is a deeply hierarchical organisation.

As “Supreme Commander of the Defence Forces” President Michael D Higgins said he “felt shame” as he read the report detailing allegations of sexual misconduct, bullying and discrimination.

He was “left with the greatest anxiety that this institutional failure is far from confined to the Defence Forces” and that “in many cases there are lessons to be drawn, and transformations to be made, that are now urgent, not only within the Defence Forces, but across our society and many of our institutions”.

He added: “We must all support every effort at such reform as will give us a truly human institutional profile, one built on dignity and a respect for both vulnerability and excellence. That is the true test of institutional effectiveness.”

It should be alarming when senior management of any public or private organisation is dismissive about credible reports of systemic or regular bullying or of similar psychosocial infractions occurring.

Any Other Avenue?

It would be inaccurate to represent that the common law presently provides a remedy against bullying. The bullying behaviour itself that is unlawful is insufficient to give rise to liability.

Rather, in the leading Irish bullying case the Supreme Court has stated the following:

“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.” (Quigley v Complex Tooling & Moulding Ltd [2009] 1 IR 349)

In that case, Mr Quigley was able to demonstrate that he had been subjected to bullying over a period of approximately one year but the requirement to demonstrate a medically recognised psychiatric illness causatively linked to the employer’s breach of duty denied him access to justice.

Victims of bullying who cannot meet this test and face or afford litigation in the courts are presently left to navigate waters which might be characterised, at best, as providing an indirect, legacy, voluntary, nuclear or even a silent resolution.

Neither of these represent the appropriate remedy for bullying.

The indirect approach involves making a claim to the WRC for having suffered bullying but only if it arises by reason of or is connected with something else, such as a protected characteristic (i.e. discrimination) or for having made a protected disclosure.

The shortcoming of this approach, as in the courts, is of how common it can be to see cases lost by employees who have proven to be victims of bullying but somehow resulted in no causal link or reason being found to exist between the bullying and these protected matters.

It is fundamentally wrong to deny justice to employees who have proved bullying has occurred.

Bullying should be compensable if loss (to include economic loss) other than personal injury occurs.

The making of a referral to the WRC under the legacy Industrial Relations Act 1969 can trigger a full and private hearing of the factual and legal issues but the most an adjudicator is empowered to do is to offer an opinion on whether a workplace investigation for bullying was conducted properly and fairly.

The fallacy here is that the victim who achieves a favourable recommendation can end up with nothing materially beneficial if the employer chooses to ignore the non-binding outcome.

This will be demoralising to a mentally exhausted or broken employee that has mustered the courage and wherewithal to challenge and confront their managers and co-workers in an external forum.

The WRC provides a free voluntary mediation service, or the parities can agree to appoint a private and experienced person to assist the parties resolve their issues.

Mediation is growing in popularity and for good reason. It is an imminently useful form of alternative dispute resolution. Its voluntary nature means that for it to be effective it requires the parties to be genuinely willing to find compromise. A signed mediation agreement can become legally binding on the parties the breach of which is actionable, though in the courts.

If mediation should unfortunately fail to procure a compromise, a victim of bullying should be able to pursue a direct remedy in the WRC or the courts.

A person can flick the nuclear employment switch by quitting their job and make a claim for constructive dismissal in the WRC. The high onus of proof will be on the claimant to show that their conditions of employment became so intolerable that no reasonable employee could be expected to continue working there or that the employer’s misconduct effectively terminated the employment contract.

This generally requires the employee having to exhaust internal grievance procedures before resigning and issuing the claim. Statistically, the vast majority of constructive dismissal claims fail. Those who obtain specialist legal advices from an earlier stage to navigate their exit tend to fare better.

An award for unfair dismissal is deemed to be taxable income whereas pure compensation awards (which an award for bullying should be) are generally exempted.

In certain cases, the award can be capped at 4 weeks of earnings or can be reduced by reason of the worker's actual or perceived failure to reasonably mitigate their loss by finding new employment which pays a similar wage.

But many bully victims will likely, by that stage, have been marginalised, put down and be made to have lost all confidence in themselves, making their employment prospects bleak.

The psychological injury caused to the bullied victim may have required a period time away from work, which most families cannot afford to do financially. It can mean the complete collapse of a professional career.

Chances are that long before the bullied employee will have physically departed the unsafe place of work, they will have quietly quitted, the term used to describe the person who shows up for work physically but has mentally and emotionally checked out of the job.

A victim of bullying can leave their job, try to find another one and try to move on with their lives. Behind that overly simplified description is the severe hardship which a victim and their family will likely suffer by having to pick up the broken pieces and completely alter their lives.

Identifying bullying

Psychosocial wrongdoing of this nature has no agreed international definition. In simple terms, bullying is repeated and systematic inappropriate behaviour that undermines your right to dignity at work.

By comparison, discrimination and whistleblower penalisation can occur by way of an isolated incident.

These are wrongdoings which can hide in plain sight as part of the fabric and culture at organisational level or thrive at industry level where certain types of exploitation exist as a matter of common practice.

Bullying can take on endless menacing and covert forms such as:

• Social exclusion and isolation.
• Being treated less favourably than colleagues in similar roles.
• Lost opportunity or denied rightful promotion.
• Belittling a person’s opinion, undermining and marginalisation.
• Spreading malicious rumours, gossip or innuendo causing reputational damage.
• Intrusion - pestering, spying or stalking.
• Intimidation and aggressive interactions.
• Excessive monitoring of work.
• Withholding information needed for the person to do their job properly.
• Manipulating a person’s job contents and targets.
• Blaming a person for things beyond their control.
• Verbal abuse and insults.
• Use of aggressive or obscene language.
• Gaslighting.

Bullying is designed to drive fear in to the minds of its victim over time and break the person’s will. It involves the perpetration of psychological violence.

It can exist at peer level and when management engages in perpetrating it or attempting to whitewash a bullying complaint it will also involve a power imbalance.

Bullying frequently shares in the clandestine manner of execution that almost all psychosocial wrongs inherently attract such that it can be difficult (or near impossible) for an employee to show it has occurred.

The victimising, humiliating, undermining and threatening of the employee can occur in the shadows.

It is not uncommon to hear victims describe it as ‘death by a thousand cuts’ (translated from the word lingchi, a form of torture and execution reserved for especially heinous crimes used in China, Vietnam and Korea from around 900 CE until the cruel practice ceased in the early 1900’s.).

It can cause suicidal ideology and many victims have taken their own lives.

These are matters which are further complicated by reason of conscious or unconscious bias in the minds of the wrongdoers against their victims.?

Impact of bullying

Bullying is an egregious wrongdoing which is corrosive to employee health, welfare and safety and which also extends in to family life.

The EU Agency for Safety and Health at Work has recognised that the consequences for victims of bullying may be significant and that physical, mental and psychosomatic health symptoms are well established.

This, it says, includes stress, depression, reduced self-esteem, self-blame, phobias, sleep disturbances, digestive and musculoskeletal problems. It can cause post-traumatic stress disorder, similar to symptoms exhibited after other traumatic experiences such as disasters.

The Agency highlights that these symptoms might persist years after the incidents. Other consequences might be social isolation, family problems and financial problems due to absence or discharge from work.

A 2018 study published in the European Heart Journal which looked at more than 79,000 workers in Denmark and Sweden found that bullying and violence can have a detrimental effect on our cardiovascular health.

The Scandinavian researchers concluded that workers who were bullied on the job, in comparison to those who were not bullied, were 59% more likely to be diagnosed with heart disease or hospitalised for heart attacks or stroke.

Its lead author drew a comparison on the effect of bullying on the incidence of cardiovascular disease in the general population to be similar to other risk factors such as diabetes and alcohol drinking.

It adversely impacts on a person’s rights to dignity and to earn a living. Over time, bullied employees can become a shadow of their former selves by this dark form of coercive control.

Prevalence of bullying

In its first ever guide on managing psychosocial hazards in the workplace, published in recent weeks, the HSA has stated that a “small percentage of workplace conflict meets the criteria of bullying.”

This remarkable statement is contradicted by the available empirical evidence and it is deeply concerning for the HSA to have minimised this extremely serious form of workplace abuse.

A study conducted by the Irish wing of the Institution of Occupational Safety and Health highlighted how workplace bullying is widespread and damaging at macro level.

It found that 1 in 10 employees have been bullied at work, resulting in 1.7 million work days being lost in Ireland each year because of it, at a cost to the economy of almost a quarter of a billion euros per annum.

These numbers clearly highlight the enormity of the problem in Ireland.

Over 20 years ago a survey conducted by the EU Agency for Safety and Health at Work showed comparable results on an EU wide level with 9% of EU workers being the subject of bullying.

It then said the prevalence of bullying is highest in jobs with high demands and low degree of individual control, resulting in high anxiety levels.

The Agency considers bullying at work to be a “significant problem in the European work force. The costs are considerable for both the worker and the organisation.”

It said that bullying is highly associated with work related stress and that around half of European workers consider stress to be common in their workplace, contributing to around half of all lost working days.

Undoubtedly there are strong public policy grounds to stamp out bullying in the workforce.

Role of the Health and Safety Authority

The HSA operates under the statutory powers of the 2005 Act with regulatory oversight to ensure employer duties of care to all employees and the management of improper behaviour at work.

It has no role in the sanction or disciplinary actions taken in these matters and does not have a role in mediation, negotiation or conflict resolution between parties to a bullying case.

Where an employer fails to act reasonably in a bullying matter, the HSA can issue enforcement action in the form of verbal or written advice and an improvement direction or notice.

It can forward an investigation file to the Director of Public Prosecution for a direction on whether to prosecute where there is prima facie evidence that an employer has failed in its duty to protect an employee.

There are no reported cases of any initiation or successful prosecution of an employer for bullying.

The equivalent body in South Australia is SafeWork which operates under the?Work Health and Safety Act 2012 has recorded numerous convictions for workplace bullying.

Such offences, according to that agency, "are prosecuted not only to penalise those who have breached their duty, but also to deter other duty holders from placing people’s safety at risk".

It also allows for compensation awards to be made to victims of bullying.

Code of Conduct

The WRC and HSA published a joint code of conduct on bullying in the workplace in 2021. It replaces codes published previously by each body. This code highlights the serious mental health fallout from being bullied and outlines the behaviours that should not be tolerated between people at work.

It is unsatisfactory that the WRC can be involved in publishing such codes when it has no jurisdiction to hear and determine a freestanding claim for alleged bullying.

It is extraordinary that workplace bullying continues to elude justice!

End

#dignityatwork #workplacelaw #employmentlaw #bullyingawareness #bully #mentalhealthawareness #lawreform #occupationalhealth #ohs #mayday2023

Neale Richmond TD (Minister of State for Employment?Affairs and Retail Business?

Deirdre Curran (Vice Dean for Equality Diversity & Inclusion for the College of Business Public Policy and Law.?University of Galway)