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Work has to be made safe for everyone

Monday, February 15, 2016

As published in the Sunday Business Post, Sunday 14 February 2016

If your office is hell for some of your staff because of the behaviour of others, it costs you long before you have to go to court.


There’s little doubt that the number of bullying and harassment cases taken against Irish employers is on the rise.  Each year sees new high court decisions in bullying/harassment claims and employers would be well-advised to take note of the way the law is moving.


A trip to the high court can be a costly and disruptive experience, which can generally be avoided if employers take a few simple precautions and are proactive when it comes to dealing with allegations of bullying in the workplace. Before considering some recent decisions, it’s useful to briefly summarise the law in this area.


It doesn’t take much imagination to know what workplace bullying amounts to – it’s any kind of negative treatment of employees, ranging from insults to threats to physical abuse. An employer’s obligation to prevent bullying isn’t confined to the relationship between the employer and employee alone. The employer is also expected to ensure that bullying does not take place between members of their staff.


An obligation to protect employees from harm is implied into the employment relationship and is bolstered by health and safety legislation. You have the right to a safe place of work and this includes the right to a workplace that is free from bullying.


Harassment is more specific. Under equality legislation, employees are protected from being harassed because of their race, age, sexuality and on certain other grounds.  In addition to this, employees have the right to protection from sexual harassment (although, thankfully, sexual harassment cases in the Irish workplace seem to be comparatively rare, at least going by the database of decided cases).


“Pure” bullying, however, is very much a growth area and more and more cases are decided every year. It is clear from these cases that the law places a positive obligation on employers.  It’s not enough to refrain from bullying employees yourself as an employer, you’ve got to make sure that there’s no bullying (or harassment) in the workplace at all.


So what can an employer do? There are a number of basis steps that every employer should take.  First of all, a clear message should be sent out to the workforce (and reinforced periodically) that any kind of bullying or harassment will simply not be tolerated.  Every employer should maintain a bullying and harassment policy which has two functions. It should leave the workforce in no doubt as to what constitutes bullying.  It should also set out a simple and effective procedure that an affected employee can follow if he or she wants to make a complaint.


An employer should also act swiftly to deal with allegations of bullying and harassment. In particular, a bad situation should not be allowed to fester.  The more time that passes, the more exposed the employer is.  That’s because of the positive duty referred to above.  An employer will generally be expected to intervene as soon as they become aware of the allegations and to take swift action.  If you don’t do this, the chances of being sued increase exponentially because the psychological harm obviously increases the longer an employee is exposed to bullying/harassment.


Recent decisions have seen tens of thousands of euro being awarded in bullying/harassment claims. The courts have made it quite clear that they won’t hesitate to fully compensate an employee who can demonstrate that they suffered some form of psychological injury as a result of bad treatment in the workplace.


Quite aside from the financial consequences of having to pay damages, an employer taken through the High Court is likely to be faced with a hefty bill for legal costs. On top of that is the unquantifiable damage which can be caused to a workplace where bullying is tolerated or ignored.   Absenteeism, low productivity and an unpleasant working environment are all common consequences of an environment in which bullying takes place.


These lessons are easily learned. Don’t tolerate bullying or harassment in your operation.  Make sure employees know their rights and give them the opportunity to vindicate them.   Most importantly, never allow these problems to fester.


Patrick Walshe