Bullying, harassment, and sexual harassment claims by employees against employers can be costly affairs.
While there is no express statutory legal obligation on employers to have policies covering bullying, harassment, and sexual harassment the Safety, Health and Welfare at Work Act 2005 and the Employment Equality Acts together with the common law create indirect obligations which amount to pretty much the same thing.
In fact, there are three statutory codes of practice covering this area. These include
the Health and Safety Authority’s code on bullying, “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work”
the Equality Authority’s “Code of Practice on Sexual Harassment and Harassment at Work” and
the “Code of Practice Detailing Procedures for Addressing Bullying in the Workplace” (“the Industrial Relations Act Code”).
The obligations and responsibilities imposed by these codes of practice along with the employers’ common law duties of care and so forth really make it imperative for employers to have policies in place.
Employers who do not have a workplace policy in place dealing with these issues will have a hard time defending claims made against him as it will be difficult to show that he has discharged his statutory obligations.
Remember that an employer can potentially face civil and criminal proceedings for failure to provide a place of work that is free from bullying.
The presence (or absence) of workplace policies is admissible in evidence in any civil or criminal proceedings when such a dispute comes before a Court or tribunal such as the Labour Court, Employment Appeals Tribunal or Rights Commissioner. Personal injuries cases taken against employers will also be significantly influenced by the presence of policies as will legal proceedings seeking to attribute liability to the employer for the illness of an employee.
Dignity at Work Policy
One of the most efficient ways for employers to attend to the obligations imposed by the three statutory codes of practice above is to have (and implement) a dignity at work policy which would address bullying, harassment, and sexual harassment.
It is important to note that this dignity at work policy needs to be adapted to the particular circumstances of the workplace. For example if there is a safety representative or committee in place he/they will have to be consulted.
It must also be effectively communicated to employees and implemented in the workplace with regular reviews to take cognisance of any changes in legislation or codes of practice.
And it must be brought to the attention of those in the workplace who have responsibility for implementing it and appropriate training should be provided.
Health and safety in the workplace in Ireland places very onerous obligations on employers. Health and safety law in the workplace derives from
Common law and
Under common law there is a general duty of care owed by employers to their employees.
Regardless of any piece of legislation such as the Safety, Health and Welfare at Work Act, 2005, employers have always had a common law duty to provide a safe place of work/premises.
Employer’s Duty of Care
The employer’s duty of care has evolved through the years.
The difficulty for employees was that they had to establish negligence by the employer and that the employee had suffered loss as a result.
The element of contributory negligence by the employee was also a problem for the employee to bring a successful claim although the Civil Liability Act, 1961 provided that contributory negligence would only lead to a reduction in damages awarded and not a complete defence for the employer.
It is now considered that the employer discharges his duty of care
“if he does what a reasonable or prudent employer would have done in the circumstances”. (Bradley v An Post, 1998, High Court)
Broadly the employers obligations can be summarised under 5 categories including
Providing safe systems of work
Providing a safe place of work
Plant and machinery that is safe and fit for purpose
Training and supervision
A duty of care in the selection of fellow employees.
The Safety, Health and Welfare at Work Act, 2005
This act sets out the broad framework of obligations and responsibilities imposed on employers and employees in the workplace in Ireland. The Act obliges employers to do everything reasonably practicable to ensure the safety, welfare and health of his employees.
NOTE: “reasonably practicable” in the context of the Act
“means that an employer has exercised all due care by putting in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety and health…at the place of work..”
These obligations also impose responsibilities in relation to bullying and harassment in the workplace, information to be provided to employees about health and safety, and supervision, training, and instruction to employees.
Employers also have obligations, not just to employees, but to other self-employed people who may be carrying out work at the employer’s premises or place of work.
Section 20 of the Safety, Health and Welfare at Work Act, 2005 obliges every employer to have a written safety statement.
Failure to have a safety statement is a criminal offence and civil liability may also attach.
Here are five essential steps to ensure that you as an employer fulfill your obligations re having a safety statement:
Identify the hazards in the workplace
Assess the risks
Choose control measures
Write your safety statement
Record and review your safety statement on a regular basis.
It must also set out the preventative and protective measures taken to protect employees by setting out the policies and procedures that will be followed and provide for the election of a safety representative in the workplace and emphasizes consultation with the workers.
This safety statement must be available for inspection at the place of work and one of the key requirements is that this statement is brought to the attention of all employees and be understandable by them.
Failure to comply with the requirements of this safety statement provision is a criminal offence but there is an exemption for employers of 3 or fewer employees.
While the preponderance of obligations with respect to health, safety and welfare in the workplace lie with the employer, employees also have obligations including ensuring that they comply with health and safety policies and procedures, avoiding the use of intoxicants in the workplace, not engaging in horseplay or improper conduct and co-operating with the employer.
Workplace safety-Employer’s duties
• Imposes a general duty of care upon all employers to ensure the health and safety of all employees.
• This extends to ensuring: safe systems of work, preventing improper behaviour amongst fellow employees.
• In addition the employer’s duties include taking steps to prevent risk from all articles, substances, noise, vibration and radiation.
• Equipment must additionally be maintained in full working order.
• In complying with health and safety legislation no employee must incur personal expense.
Section 8 imposes new obligations on the employer to address stress in the workplace.
• In recognising the evolving multi-cultural profile of the Irish work force, this section specifies that all health and safety notices must be displayed in a manner and language as is suitable to the requirements of the resident workforce.
• Training and instruction where provided must be in a manner which is suitable to the requirements of those at issue and without financial penalty incurring to the individuals concerned.
• Such training should be provided where appropriate upon recruitment, where a change of task is required and in instances where new work systems are put in place.
• All employers have a duty, to those other than employees, to ensure that that they are not exposed to risk.
• In accordance with the provisions of this section, employees are required to take all reasonable steps to ensure their own health and safety as regards both acts and omissions in the course of their duties.
• This extends to ensuring that they are not intoxicated whilst at work and to submit to an examination by a registered practitioner when this is suspected.
• Additionally there is an expectation that employees should make use of safety equipment when provided.
• Employees should also report any deviations from work practice, defects in equipment or machinery and refrain from misrepresenting the degree of training in the safe work systems previously gained. (See below re employees’ duties)
• Employers shall identify all relevant hazards and accordingly draw up and be in possession of a risk assessment profile.
• This should be subsequently reviewed in circumstances whereby there has been significant change to provisions or where there is alternate reason to believe that the risk assessment is no longer valid.
• A safety statement should be in the possession of the employer. This statement should identify all hazards, assess the associated risks and identify the safety equipment to be provided.
• A contingency plan must be drafted to be deployed in the event of an emergency including the duties of specified individuals.
• Places an onus on the employee to report either directly to their employer or to a specified medical practitioner the onset of any illness which may materially affect the performance of their duties eg heavy machinery operator diagnosed with epilepsy.
• Employees may from time to time select from amongst their co-workers a delegate to act as a safety representative, more that one may be selected with the consent of the relevant employer.
• This individual may thereafter: inspect the work place, investigate accidents, and with notice to the employer investigate complaints from co-workers.
• As of right this individual is entitled, without loss of remuneration, to take a leave of absence to receive training pursuant to their duties or to discharge existing functions.
• An employer may not penalise, that is suspend, demote, reprimand etc for acting in compliance with statute, making a complaint based on health and safety non compliance or giving evidence in proceedings.
• Under the provisions of the Act, inspectors may be appointed to oversee compliance. Such inspectors will be furnished with a certificate of inspection as suitable form of identification.
• Inspectors so appointed will be endowed with the power to enter any workplace any time to inquire as to statutory compliance with the 2005 Act.
• This power is manifested in an ability to demand access to relevant records and where necessary take original copies.
• In circumstances where the inspector deems it appropriate, an improvement notice may be served.
• This notice will state the failure of compliance at issue, state the relevant statutory provision that this fails to adhere to, direct the individual to remedy this situation.
• Once the matters referred to have been remedied, the employer shall alert the inspector who shall on being satisfied issue a certificate of compliance.
• Where an inspector is of the opinion that at any place of work there is occurring or is likely to occur any activity which involves or is likely to involve a risk of serious personal injury to any person, the inspector may serve a written notice (in this Act referred to as a “prohibition notice”) on the person who has or who may reasonably be presumed to have control over the activity concerned.
• Where a prohibition notice has been served under section 67 and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.
• Where an improvement notice or a prohibition notice is served, the person to whom it is addressed shall on receipt of the notice:
(a) bring the notice to the attention of any person whose work is affected by the notice, and (b) display the notice or a copy of the notice in a prominent place at or near any place of work, article or substance affected by the notice.
Consultation and Safety Representatives
The Act places a strong emphasis on consultation with workers and the role of worker safety representatives.
Section 26 places a duty on employers to consult with employees and safety representatives as appropriate.
The Maternity Protection Acts provide that all employers carry out risk assessments taking particular account of pregnant women.
Employers are obliged to
reduce risks where practicable
change work arrangements
offer suitable alternative employment or, if that is not possible, paid leave for the pregnant employee for as long as is necessary
to protect her health and safety or that of her child.
Employers are also obliged to provide suitable facilities where rests may be taken during the day and where breastfeeding may take place.
Occupiers’ Liability act 1995
The Occupiers’ Liability Act, 1995 also provides for the retention of the common law duty of care that an employer owes to an employee, in addition to his obligation to the employee as an occupier.
It is clear from the above that the employer’s duties to provide work safety in the workplace are pretty demanding.
Criminal penalties can be imposed for serious breaches and this has occurred in the Irish courts. Any employer not taking his duties to provide work safety in the workplace for his employees is taking an unjustifiable risk, both for himself and his employees.
It is noteworthy from the above list that bullying falls under the heading of health and safety in the workplace and the employer has an obligation to prevent bullying and stress in the place of work. Not to do so can lead to successful claims for constructive dismissal and breach of contract.
The Health and Safety Authority (HSA)
The Safety, Health and Welfare at Work Act, 2005 set gave additional powers to the Health and Safety Authority (HSA) to enforce the legislation and regulations.
Most of the sanctions are criminal.
The HSA also has the power to prepare Codes of Practice to give support to the detailed statutory provisions giving effect to the legislation.
Provision was also made for local authorities to be enforcement agents in lieu of the HSA.
The HSA also have increased powers of entry under the Act.
Prosecution of Offences
The penalties set out in the act fall into 3 categories
Summary Offences for which fines only can be imposed
Summary Offences for which a fine and/or imprisonment can be imposed
Indictable offences-fines and/or prison.
Bullying and Stress in the Workplace
An employer has a general common law duty of care to prevent bullying and stress in the workplace.
The safety statement, as required by the Safety, Health and Welfare at Work Act, 2005, also requires that the employer carry out a risk assessment regarding bullying in the workplace and to carry out a risk assessment on an ongoing basis. (See also dignity at work policies)
Stress, Occupational Stress and Non Physical Injuries
The HSA (Health Safety Authority) defines workplace stress as “when the demands of the job and the working environment on a person exceeds their capacity to meet them” and identifies a range of situations which can cause stress in the workplace including poor communication, poor working relationships, ill-defined work roles, and others.
Non physical injuries in the workplace
However there is a difficulty here for employers as there is no well accepted definition of stress as a non-physical injury and claims for non-physical injuries in the workplace tend to be decided on the basis of decisions in case law.
Cases like Kelly v Hennessy, McHugh v Minister for Defence, Curran v Cadbury ltd., McGrath v Trintech, and Maher v Jabil Global Services Limited IEHC are instructive in this regard.
The test set out in the decision of the Maher v Jabil Global Services Limited  case was later adopted by the Supreme Court in Berber v Dunnes Stores ltd. . Accordingly the test to be used to identify negligence by the employer for non physical injury in the workplace asks these 4 questions:
Has the employee suffered an injury, not just occupational stress?
If he/she has, is the workplace to blame?
If so, was the harm suffered by the employee reasonably foreseeable by the employer?
If so, did the employer fall below the standard of the reasonable and prudent employer n addressing the needs of this employee?
It is noteworthy that when an employer is aware that a particular employee has a higher susceptibility to stress the employer actually has a higher duty of care to that employee. The Safety, Health and Welfare at Work Act, 2005 also defines a personal injury in the workplace as
“(a) any injury, disease, disability, exceptional illness or any impairment of physical or mental condition..”
So bullying policies and grievance procedures are an essential for employers to show they have done everything reasonably practicable to prevent bullying and stress in the workplace and should provide for the relieving of an employee of his/her duties and the obtaining of advice from health professionals.
The “Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying” defines bullying at work as
‘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 dignity at work’
The code sets out guidelines for developing bullying prevention policies in the workplace and sets out the risk assessment procedures to be used in developing anti-bullying policies. And most importantly for employers and HR or legal advisors the code sets out detailed guidance in relation to carrying out investigations of bullying in the workplace.
As stated above the absence of an anti-bullying policy in the workplace will make it difficult for an employer to successfully defend a claim of bullying.
Grievance procedures are also a safeguard against successful claims as the employer needs to be able to show that the employee had access to management and management needs to be able to show that it thoroughly investigated the grievance/complaint.
Bullying at Work-The Legal Remedies
If you are being bullied at work there are a number of legal remedies open to you.
The broad categories of causes of action you can pursue would be
breach of contract
the tort of negligence insofar as your employers owes you a duty of care
health and safety law and the employer’s duty to provide you with a safe workplace
unfair dismissals (constructive dismissal)
Breach of contract? Your contract of employment will contain either an express or implied term that the employer will maintain your trust and confidence, that he will take reasonable care for the health and safety of his employees, that he will provide a safe system of work, that he will ensure reasonable codes of conduct in the workplace, that employees will be free in the workplace to work free from bullying and harassment.
In addition to the contractual duty to take reasonable care of all his employees, the employer has a general duty of care towards his employees under the law of torts (civil wrongs). (Learn more about negligence and torts here)
The employee can also bring a case for constructive dismissal if he/she leaves the employment because of the bullying; however this should be one of the last options to exercise as the burden of proof in constructive dismissal cases fall on the employee.
The venues that you would pursue the various remedies range from the Rights Commissioner service to the Employment Appeals Tribunal to the Labour Court to the Health and Safety Authority to the Civil Courts. [flv:https://terrygorrysolicitors.s3.amazonaws.com/health-and-safety-in-the-workplace.mp4 https://terrygorrysolicitors.s3.amazonaws.com/health-and-safety-in-the-workplace.png 600 460]
The Employee’s Health and Safety Duties
Employees also have duties under the 2005 Act, which can be summarised as follows:
To comply with the relevant statutory provisions and take reasonable care to protect his/her own safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work.
To ensure that he/she is not under the influence of an intoxicant to the extent that he/she is in such a state so as to endanger his/her own safety, health or welfare at work or that of any other person.
If reasonably required by his/her employer, to submit to any appropriate, reasonable and proportionate test for intoxicants by, or under the supervision of, a registered medical practitioner.
To co-operate so far as it is necessary to enable his/her employer or any other person to comply with the relevant statutory provisions.
To not engage in improper conduct or other behaviour that is likely to endanger his/her own safety, health and welfare at work or that of any other person.
To attend such training and undergo such assessment as may be reasonably required or as may be prescribed.
To make correct use of any article or substance provided, including protective clothing or equipment, having regard to his/her training and the instructions given by his/her employer.
To report as soon as practicable, to his/her employer any work being carried on which is likely to endanger the safety, health or welfare at work of the employee or that of any other person, any defect in the place of work, systems of work or any article or substance which might endanger the safety, health or welfare at work of the employee or of any other person, or any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person.
An employer may be guilty of an offence under the 2005 Act where he fails to discharge his duties to his employees as outlined above.
An employee can complain to the Health and Safety Authority (the “HSA”) who can monitor complaints and can take enforcement action (up to and including prosecution) under the 2005 Act. Part 7 of the 2005 Act sets out specific offences and penalties that may arise for breach of the various duties and obligations under the 2005 Act.
The 2005 Act also provides that an employer shall not penalise or threaten penalisation against any employee who acts in compliance with the 2005 Act, or who performs any duty or exercises any right under the Act or who makes a complaint or representation to either his employer or the Health & Safety Authority as regards any matter relating to the 2005 Act.
An employee who feels aggrieved in this regard may complain to a Rights Commissioner of the Labour Relations Commission whose decision may declare that the complaint was or was not well-founded, require the employer to take a specific course of action and/or require the employer to pay to the employee such compensation as the Rights Commissioner may deem just and equitable in the circumstances.
Decisions of Rights Commissioners may be appealed to the Labour Court and thereafter are enforceable by the Circuit Court.