Significant award made in workplace bullying case

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Another significant damages award for workplace bullying has been handed down by the High Court. An Post was ordered to pay a former employee, Ms Catherine Hurley, €161,000 in damages made up of €50,000 in general damages, €84,426 in respect of loss of earnings and €22,064 in interest. In making such a large award, the Court found that An Post had "failed to tackle" the workplace bullying experienced by Ms Hurley.

This case provides a useful reminder to employers of the duties owed to employees in situations of workplace bullying.

What happened?

Ms Hurley, a postal worker, was involved in an incident with a co-worker in 2006 during which the co-worker reacted aggressively to Ms Hurley's request to pass postal packets to her from a trolley. Ms Hurley gave evidence that she was afraid the co-worker was "about to head-butt her" and that she was "afraid of her life". The co-worker was subsequently suspended. However, it was the reaction of Ms Hurley's other colleagues following this particular co-worker's suspension, coupled with An Post's poor handling of the matter, that formed the basis for Ms Hurley's case.

Ms Hurley gave evidence that, after her co-worker's suspension, her fellow employees effectively ignored her and made her feel unwelcome and "ostracised". On raising the issues with An Post's human resource manager, Ms Hurley was advised that the matter would "die down". Ms Hurley then raised her concerns with another supervisor, advising him of her feelings that "75% of her [Ms Hurley's] colleagues were ignoring her" and that the situation was "getting worse", but no action was taken. The situation deteriorated further and Ms Hurley was absent from work on numerous occasions on grounds of work-related stress and Post-Traumatic Stress Disorder. An Post dismissed Ms Hurley in 2011.

Ms Hurley sued her employer for negligence, breach of duty, and breach of contract as a result of being ostracised by her colleagues.

What did the High Court decide?

The High Court endorsed the definition of "bullying" as set out in the Code of Practice prepared under the Industrial Relations Act 1990 (the Code):

"Workplace Bullying is 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 High Court held that Ms Hurley had been "subjected to unfriendly behaviour and social exclusion in the workplace". It found that her colleagues treated her in a "debilitating and humiliating" way and undermined her right to dignity in the workplace. It stated that the "accumulation of pretty daily humiliations and repeated spiteful or petty actions with a continuing social rejection or exclusion is the very essence" of the legal definition of bullying.

Justice McDermott was also critical of An Post's response in allowing the behaviour of Ms Hurley's colleagues to "continue unchecked" while providing Ms Hurley with "minimal" support, effectively suggesting that she "ride out the storm in the hope it would pass." The court found that Ms Hurley had no "practical support or protection" from her employer. It also criticized the fact that Ms Hurley was not encouraged to make a formal complaint (in accordance with the Code), but rather advised to let matters settle down naturally.

The High Court confirmed that an employer has a common law duty to "take all reasonably precautions of the safety of its employees and not to expose them to a reasonably foreseeable risk of injury." It also confirmed that employers have a statutory duty under the Safety, Health and Welfare at Work Act 2005 to protect, so far as is reasonably practicable, the safety, health and welfare at work of its employees. Such an obligation requires an employer to have in place protective and preventative measures to prevent both physical and mental injury.

In this case, the court found that Ms Hurley's deteriorating physical and mental health, including the recognisable psychiatric illness (PTSD) that should have been reasonably foreseeable by her employer, was caused by the workplace bullying she experienced. The High Court held that the symptoms of PTSD, depression and anxiety were triggered by the 2006 incident and were "also caused and substantially contributed to by reason of the bullying and harassment to which the plaintiff was subjected thereafter".

An Post, as Ms Hurley's employer, was found liable for the bullying and harassment which Ms Hurley experienced from her co-workers. The court found An Post had breached both its common law duty of care to Ms Hurley as an employee and its statutory duty under the Safety, Health and Welfare at Work Act 2005. It noted  that An Post had failed to address Ms Hurley's complaints in any meaningful way and noted that "no efforts were made by management to engage with her predicament other than by hoping that matters would improve over time." The Court was also critical that:

"No attempt was made to caution the workforce about Ms Hurley's treatment or advise that it was unacceptable to management or that persons engaged in such behaviour might be subject to discipline".

Conclusion

As detailed in our previous alerter, the Supreme Court decision in another landmark workplace bullying decision, Ruffley v The Board of Management of St Anne's School, confirmed that the threshold to be reached in meeting the legal definition of "bullying" is quite high. This case recognised that situations of managing employee performance or disciplining employees do not automatically fall within the definition of "bullying".

However, the Hurley decision is an important reminder to employers of their common law and statutory duties to ensure a safe place of work by preventing physical and mental injury. At a minimum, employers must have in place a robust and comprehensive Anti-Bullying Policy (that adheres to the terms of the Code) and take a proactive approach in both investigating and addressing complaints of workplace bullying. The content of such a policy should be communicated clearly to all staff and appropriate training should be put in place for staff and management to recognise the types of conduct that constitute "bullying" and how to address same.

The significant level of damages being awarded to employees who have suffered a reasonably foreseeable injury as a result of workplace bullying is a reminder to employers of the imperative of fulfilling their statutory and common law duties to employees.

For more information in relation to this topic, please contact Ailbhe Dennehy, Senior Associate, or any member of the A&L Goodbody Employment Team.

Date published: 23 July 2018