Bullying and Harassment: Further Developments

Bullying and Harassment: Further Developments

Bullying and harassment has an insidious effect upon workplace relations, pitting one employee against another, to the detriment of all concerned.  This type of behaviour erodes team morale, affects staff performance and can result in expensive claims against employers.  Earlier this year, we hosted a breakfast briefing for our clients and provided "top tips" for employers when dealing with these issues.  Since our breakfast briefing, workplace bullying and harassment has received significant media attention and recent developments in the area highlight the extent of the problem.

At our briefing, we discussed the case of Brannigan v Co. Louth VEC, which involved a retired teacher who made claims of bullying and harassment (mainly against his own students).  Mr Brannigan claimed that his students had embarked upon a campaign of homophobic bullying against him and blamed his employers for not taking sufficient action to protect him in the workplace.  It was reported in one national newspaper that Mr Brannigan settled out of court for approximately one year's remuneration plus legal costs.  Mr Brannigan's action comes at a time when High Court bullying and harassment claims are in the spotlight.  A number of High Court cases in 2012 resulted in significant awards for employees claiming personal injuries as a result of bullying and harassment at work (in particular, Kelly v Bon Secours and Browne v Minister for Justice).  This type of litigation can be very costly for employers.  Bullying and harassment cases tend to be complicated, requiring evidence from numerous witnesses and many days of hearing.  They can result in significant legal costs and lost employee time (on top of any award that may be made to the employee).  The Kelly and Browne judgments also include findings of "corporate bullying" against the employers concerned.  This is a new concept in Irish law and one that is causing employers some concern. 

Bullying and harassment has also featured in UK employment news recently.  In May, a report was published (commissioned in the wake of the Savile scandal) detailing bullying and harassment at the BBC.  The report criticized a culture where "known bullies" were allowed to prosper, and even be promoted, because they were perceived to be untouchable.  In June, it was reported that Dundee City Council was ordered to pay a devout Christian employee, more than £100,000 after her work colleagues (amongst other things) stuck sexually explicit models made of Blu-Tack on her telephone.  The Court found that the employee had informed her superior of the obscene behaviour, but the Council had failed to take corrective action.  Both the report and decision received considerable media attention in the UK, which is a common feature in bullying and harassment cases, where the facts tend to spark the public's interest.

Back on the home front, the news has been no less worrying for employers, starting with a number of controversies involving political parties.  In July, a video clip showing a male Fine Gael politician pulling his female colleague on to his lap during a Dáil debate on abortion went viral.  Dubbed "lapgate", the incident resulted in a whirl of negative publicity.  Later that month, Nessa Childers MEP, resigned from the Labour Party, and claimed in the Irish Independent that she was subjected to a campaign of "overt bullying" by senior party members. 

Two recent judgments of the Irish Equality Tribunal will also be of interest to employers.  In the first case, Eddie Rockets was ordered to pay €15,000 in compensation to two lesbian employees who quit work after just two weeks.  The couple claimed that they experienced obscene comments from other work colleagues, which were offensive to them on the grounds of their sexual orientation.  The Tribunal found that Eddie Rockets had not taken reasonable steps to prevent the harassment, such as communicating a Dignity at Work Policy to employees.  Last month, the Tribunal awarded two years' compensation against a large retailer when a woman claimed that she was subjected to explicit comments at work and was sexually assaulted at a 'leaving drinks' party.  The employer had a Dignity at Work Policy in place, investigated the incident, demoted the supervisor and offered the alleged victim a position in another of its stores.  While the employer did punish the supervisor, the Tribunal criticized the employer for putting the onus to move on the employee who made the complaints (as opposed to the person who was found guilty of harassment). 

However, it's not all bad news for employers.  Two recent judgments from the Equality Tribunal (McKeever v Securitas & Hogan v Vistamed) illustrate that employers can limit (and possibly avoid) liability in bullying and harassment cases if they have a comprehensive Dignity at Work Policy in place, ensure that staff are aware of the policy and trained on its provisions, investigate complaints appropriately and take suitable action against employees who breach the policy.  

In the Securitas case, Ms McKeever claimed that she was subjected to sexual harassment by her main contact at a client site.  The Tribunal found that the comments made were inappropriate, but Securitas was not liable.  Ms McKeever had been issued with an employee handbook when she commenced employment which included a complaints procedure and the Tribunal held that she should have complained at the time of the harassment.  In the Vistamed case, Mr Hogan, a Northern Irish Protestant, claimed (amongst other things) to have been verbally abused by a colleague on the basis of his religion and race.  The Tribunal found that the comments made were inappropriate, but determined that the employer had acted appropriately by investigating the case and implementing the disciplinary process in a reasonable manner.  

These recent cases demonstrate that, as in so many areas of employment law, employers must act reasonably at all times and will be judged harshly if they fall below what can sometimes be an exacting standard.  With careful advice and specialist legal support, employers can navigate this difficult area and avoid expensive litigation.

If you would like further information, contact Emmet Whelan or your usual contact in our Employment Law Department.