Workplace bullying can be an extremely difficult thing for a person to admit to, let alone challenge their employers on.
Emer Murphy from Lavelle Solicitors walks a Daily Slog reader through the options available to her in tackling a company culture of bullying and harassment.
For almost two years I have worked for a small company of under 50 employees. The management team at my company have allowed a culture of workplace bullying and harassment to flourish and I would like to know my legal rights in relation to challenging their behaviour. There have been concrete examples of improper practice in the way staff have been let go from the company. I can also point to personal experience of bullying and aggression from a direct manager.
Because the company is a small one, there is no HR department internally, or external HR partner that I can speak to on this, and no Union representation. I would like to get a handle on procedures that need to be followed if I were to legally challenge the bullying and harassment. Can you please advise how I would do this, and what would the likely costs and procedures be for taking an employer to court?
Of the employment queries I receive Workplace Bullying is a frequent one and complaints of this sort are becoming an increasing problem in the workplace. It is difficult to estimate the likely costs without further details and an idea of what action will be taken but I have set out the current legal position and what options may be available to you.
What are your rights:
Bullying at work has been accepted as ‘repeated inappropriate behavior, 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’.
Employers have a common law duty of care to take reasonable care of their employees safety from mental, psychological or psychiatric illnesses that are attributable to bullying, harassment and sexual harassment
In the Safety, Health and Welfare at Work Act, 2005 there is a general duty on your employer to do everything it can, as far as is reasonably practicable to ensure the safety health and welfare of its employees, which includes the reasonable prevention of bullying. The Employment Equality Acts 1998 – 2015 make the harassment and sexual harassment of employees unlawful and define harassment as “unwanted conduct” which is related to any of the following 9 discriminatory grounds, Gender, Civil Status, Family Status, Sexual Orientation, Age, Disability, Race, Religious Belief and Membership of the Traveller Community. Bullying that is under any of these 9 grounds will also fall under this act. Harassment that is not under one of the 9 grounds may fall to be dealt with under the Safety, Health and Welfare at Work Act, 2005.
The Health and Safety Authority (“HSA”) have a Code of Practice on the Prevention of and Resolution of Workplace Bullying and this is available on their website. The code sets out guidance notes for employees, employers and trade unions on dealing with bullying in the workplace. The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 has legal effect and provides that employers should act in a preventative and remedial way in relation to harassment and sexual harassment at work. The Workplace Relations Commission (“WRC”) also has a Code of Practice for dealing with bullying in the workplace and deals with employment complaints under the relevant legislation.
Finally, employers have a common law duty of care to take reasonable care of their employees safety from mental, psychological or psychiatric illnesses that are attributable to bullying, harassment and sexual harassment.
What should my employer have in place:
Your employer should have procedures in place for dealing with harassment, sexual harassment and bullying in the workplace even if they do not have a HR department. The procedures should outline the reporting structure and how these complaints will be dealt with. If suitable you should consider beginning by making it very clear to the person(s) concerned that you find their behavior unacceptable and undermining. If the informal approach does not work you can then consider lodging a formal complaint and if they have a policy it should outline who you will report this to.
If you think your employer does not have an adequate policy, which seems likely from your query, or you feel you cannot approach your management for it, the HSA may be able to assist you. You can raise a complaint with them that your organization does not have an anti-bullying policy. On receipt of a complaint they will contact your employer for a copy of the policy and send it onto you. They may recommend changes if the policy is not in line with the HSA code. It is then up to you to use the procedures in the policy to raise your particular concerns with your employer.
What can I do if my employer does not deal with it:
If your complaint about bullying and harassment has not been dealt with properly by your employer, it is possible to make a complaint to the WRC under the Employment Equality or Health and Safety Legislation. Complaints must be brought within 6 months of the last act complained of. This time limit may be increased to 12 months if “reasonable cause” for the delay can be shown.
If an employee makes a complaint to the HAS, or under the above acts and is then penalized for making the complaint they can lodge a complaint for victimization with the WRC.
Another possible route may be a Constructive Dismissal claim to the WRC. This is where you terminate your employment due to the conduct of your employer. The employers conduct must have been such that it is reasonable for you to terminate your contract and it will be for you to prove that your resignation is justified. It will be necessary to utilize your employers grievance procedure, enabling your employer to have an opportunity to investigate the complaint and take remedial action, if appropriate or the claim will likely fail. You should seek legal advice before terminating your employment.
In some cases as a direct result of workplace bullying or harassment, a personal injury can occur. The injury must be an identifiable psychiatric injury and must be certified by a doctor. In these circumstances an employee may have a cause of action against the employer that they can pursue through the courts.
This article is for general guidance only and should not be regarded as a substitute for professional advice. I recommend that legal advice is always taken before acting on any of the matters discussed.
Emer Murphy is a Solicitor in the Litigation Department of Lavelle Solicitors, where she specialises in the areas of Employment Law, Commercial Litigation and Personal Injury.
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