Isolating The Workplace Bully

An Assessment of the Legal Issues Involved

Introduction

Bullying is one of the most insidious but apparently hidden features of the employment landscape. The reason for its continuing omission from attention is the misapprehension of the actual term. Attitudes towards bullying are mistakenly focussed on the victim. The erstwhile excuse of the assailant is that he did not intend his actions to be taken as offensive or aggressive, and accordingly the imputation is that the victim is an overly sensitive individual, unable to accept the routine banter of the workplace.

However, this line between “firm” management and bullying is more apparent than real. Studies have made it possible to attempt to define the term, bullying, and the symptoms and effects of bullying are also more clear. Bullying or victimisation is recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community. This analysis distinguishes between the natural phenomena of occasional differences of opinion, conflicts and problems in working relations generally. Victimisation does not occur until such personal conflicts lose their reciprocity and respect for each other’s right to personal integrity, and slip into unethical and aggressive actions. The emphasis is on recurrent behaviour. Invariably, the assailant will have a systematic approach to his errant behaviour, which he will implement over a period of time. Harassment involves a power differential between the aggressor and the victim. This can be either real, as in the case of management/employee relations, or apparent, as in the case of employees of similar standings.

It is important to attempt to set out a typology of bullying behaviour. This can be set out in five major categories:-

  • Manipulation of the victim’s reputation by rumour, gossip, and ridicule.
  • Prevention of opportunities to the victim for open and fair communication.
  • Social exclusion and isolation of the victim.
  • Manipulation of work tasks to deleteriously affect the victim’s job performance.
  • Threats of or actual physical abuse.

Within this context it is helpful to distinguish between direct and indirect forms of bullying. Indirect forms of bullying, such as spreading rumours or social exclusion, are the most open to interpretation. It proceeds very often by suggestion and innuendo, and rarely involves direct actions against the victim in the presence of a third party. However, indirect bullying is equally destructive. Here, as in the related area of sexual harassment, the approach should be to assess the issue of whether the conduct amounts to harassment from the perspective of the victim.

Bullying over a period of time will give rise to psychological and physical problems. The most common psychological effects are anxiety, panic attacks, feelings of helplessness, reduced confidence, and depression. Physical effects include disturbed sleep, palpitations, increased blood pressure, irritable bowel syndrome, stomach disorders, chest pains, and headaches. Within an organisation the effects can be reduced efficiency and quality of work, low morale and an atmosphere of tension, increased absenteeism, and a lack of creativity.

Bullying at work is a major contributor to stress-related illness and poor performance at work. In the U.K., approximately 40 million working days per annum are lost due to stress-related illnesses, of which up to 50% is caused by workplace bullying. There is nothing to suggest that the Irish workplace is better.

Once we know the nature of the beast, the purpose of this article is to assess possible legal solutions to this disturbing problem. I propose to deal with this by analysing the statutory regulation in place, proposing a novel departure in the common law, and assessing the issue of constructive dismissal.

Statuatory Regulation: An Opportunity Lost or Yet To Be Found?

There is no direct reference to the issue of harassment in the Safety Health and Welfare at Work Act 1989, or any regulations made under it. The closest the 1989 Act comes is by virtue of Section 6 (2) (d), which requires the employer to provide systems of work that are planned, organised, performed and maintained so as to be, so far as is reasonably practicable, safe and without risk to health.

This has been enough for the Health and Safety Authority to arrogate the area of bullying in the workplace to the curtilage of their jurisdiction. They have issued booklets entitled, “Workplace Stress” and “Violence at Work”, and clearly treat the mental health of employees as within the training and educational aspects of their function. However, in the event that a victim of harassment in the workplace wishes to complain to the H.S.A., it remains unlikely that that complaint would lead to a successful prosecution. The main reason for this is the lack of clear jurisdiction of the H.S.A. There is also the practical reality that accidents at work will naturally attract priority.

Another option open to the victim is to use Section 12 of the 1989 Act, which requires the employer to prepare a Safety Statement. This is effectively a management tool which should be used to identify hazards in the workplace, and devise a plan of action to remove that hazard. Where bullying is recognised as a potential issue, the employer is obliged to address this in the safety statement, as failure to do so is:-

  • A statutory offence under section 48 (1) of the 1989 Act amenable to a fine of ¬£1,000.00 in summary conviction on a prosecution brought by the H.S.A., and
  • an actionable tort in negligence, if – and this is a big “if” – the employee can establish that the employer’s failure to engage in this hazard identification programme resulted in injury to the employee (Mullen -v- Vernal Investments Limited, unreported, Barron J., 15th December, 1995, and Matthews -v- Society for Autism and National Autistic Association, unreported, Laffoy J., 18th April, 1997.)

The Safety Statement should address the following issues:-

  • state clearly that bullying is unacceptable behaviour.
  • set out procedures for reporting and noting incidents of bullying
  • set out procedures for investigating incidents of bullying.
  • create a support programme for victims.
  • state clearly disciplinary measures applicable for assailants.
  • set out the monitoring procedures to assess the effectiveness of the programme.

Needless to say, one would not wish to have to hang one’s hat on this peg alone in an action against an employer for psychological stress, but it may well be open to use this plea amongst other particulars of negligence.

The best option would be to introduce a regulation which deals specifically with harassment in the workplace. Sweden has already followed this path by virtue of its Ordinance containing Provisions on measures against Victimisation at Work (AFS 1993: 17), which has been in force in Sweden since the 31st March, 1994. The provisions are simple and direct, contained in six sections:-

  • Section 1 sets out the scope of the regulations, and defines victimisation as outlined above.
  • Section 2 requires the employer to plan and organise work so as to prevent victimisation.
  • Section 3 requires the employer to make clear that victimisation of employees is unacceptable behaviour.
  • Section 4 requires there to be a general procedure to identify and then resolve problems of victimisation
  • Section 5 requires the employer to take direct action where an actual incident of victimisation occurs
  • Section 6 requires the employer to give help and support to the victim of harassment.

I recommend the adoption of this approach as it would give the H.S.A. a simple and clear mandate to act on complaints of bullying, and would provide a focal point for the education of employers about this problem.

Wilkinson -v- Downton: The Negligent Development of an Intentional Tort

The problem with bullying from a legal point is that it is an intentional act. The assailant, in spite of his possible protestations of innocence, is involved in a systematic deliberate series of actions designed to demean the standing of the victim. He knows what he is doing and he knows the result he wants to achieve. Where then is the negligent act? Bullying is unfortunately beyond the direct reach of general negligence principles. It is necessary to look at the intentional torts.

In the case of Wilkinson -v- Downton [1897] 2 Q.B. 57, the Defendant told the Plaintiff, as a “practical joke”, that her husband had asked him to tell her that he was lying with both legs broken following a serious accident. This was untrue. Wright J. described the effect on the Plaintiff as producing “a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her …” In this case, Wright J. expounded the principle that a cause of action lies where a person wilfully does an act to another, calculated to cause physical harm or infringe the other’s legal right to personal safety, and actually causes physical harm to that other person. This is the principle of law which I submit can be used to pursue a claim for a victim of bullying directly against his assailant.

There are a number of features, not to say difficulties, with pursuing a claim in this form.

1. There is no necessity for direct physical contact to cause the injury complained of, and words alone will give rise to a cause of action.

Until recently, one would have been forgiven for thinking that damages for mental stress arising from actions over a period of time – as opposed to shock-induced – were unavailable. Lord Wensleydale in Lynch -v- Knight (1861) 9 HL Cas 577, said, “mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone”. This accurately summates the old attitude of the Courts which adopted the viewpoint of a doubting Thomas, and awarded damages for physical injuries only. A more temperate, though still inadequate view was expressed in Dulieu -v- White and Sons [1901] 2 K.B. 669, in which Phillimore J. said:-

“I think there may be cases in which A owes a duty to B not to inflict a mental shock on him or her, and that in such a case, if A does inflict such a shock upon B – as by terrifying B – and physical damage thereby ensues, B may have an action for the physical damage, though the medium through which it has been inflicted is the mind.”

This seems to reflect the notion, perhaps consistent with the times, that mental disorders resulted in physical effects, and it is these physical effects that could attract damages. This view is reflected in the judgements of Wilkinson -v- Downton, and Janvier -v- Sweeney.

However, modern medicine has moved on, and the greater understanding of the capacity of injury to the psychiatric health of the individual has now been recognised by the Courts. In Walker -v- Northumberland County Council [1995] 1 All E.R. 737, in the course of awarding the Plaintiff damages for the psychiatric consequences of his employer’s negligent failure to provide a safe system of work, Coleman J. opined:-

“Whereas the law on the extent of [the employer’s duty of care] has developed almost exclusively in cases involving physical injury to the employee as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer’s duty of care or from the co-extensive implied term in the contract of employment.”

This principle, though espoused in a case involving negligence has equal application to all torts. Essentially, the law now relies on the advances of modern medicine and trusts that it is now as possible to reach a clear and reliable diagnosis of psychiatric injuries as it is purely physical injuries.

2. The words need not be spoken to the victim directly.

In the two founding cases for the tort of harassment, Wilkinson -v- Downton, and Janvier -v- Sweeney [1919] 2 K.B. 316, the words of harassment were spoken directly to the victims. Subsequent cases have established that this is not necessary. In Stevenson -v- Basham and Another [1922] N.Z.L.R. 225, the assailant threatened to burn down the house of the victim’s husband. The victim was in bed unwell, and overheard the comments. She became seriously unwell, and as a result of the statement she had a miscarriage. The assailant was found liable as his wilful comments had caused the victim’s shock. An even more circuitous route arose in Bielitski -v- Obadiak (1922) 65 D.L.R. 627. There the Defendant made a false statement that a person had committed suicide, which statement was filtered through three other people, before it came to the ears of the Plaintiff, the mother of the “suicide”, who suffered a violent shock and became ill. In finding for the Plaintiff, Lamont J.A. said:-

“Any reasonable man would know that the natural and probable consequence of spreading such a report would be that it would be carried to the Plaintiff, and would, in all probability, cause her not only mental anguish, but physical pain.”

The Court was influenced by the Defendant’s failure to explain why he had told the falsehood, and also by the evidence that the defendant had indeed encouraged the third party to whom he first told the lie to establish the veracity of the statement. Nevertheless, the focus is on what may be considered the “natural and probable consequences” of the assailant’s actions.

This has a direct bearing on the issue of indirect bullying. If an assailant uses rumour or innuendo spread to co-employees, which rumour and innuendo affects the victim’s mental health upon hearing those rumours, then it is submitted that the assailant is liable under this principle, once the initiation of the rumours was wilful.

3. The victim must sustain a recognisable psychiatric disorder.

It is of more practical concern than the historic view of psychiatric injury already discussed, that all the cases under the Wilkinson -v- Downton line of authority have involved shock-induced psychiatric injury. In Janvier -v- Sweeney, the Plaintiff was told that she was under suspicion of writing to a German spy, and suffered a severe nervous shock. Some of the activities of debt collection agencies, insurance adjusters, and landlords in America have attracted liability due to the shock tactics they have employed. Most colourfully, in Great A. & P. Tea Company -v- Roche (1930) 160 Md 189, 153 A. 22, the Defendant wrapped up a gory rat instead of a loaf of bread.

While this has been the trend of cases, an analysis of the ratio of Wilkinson -v- Downton, does not show that it is a sine qua non of liability that a shock-induced psychiatric disorder should result. Wright J. spoke in terms of a wilful act calculated to cause physical harm. Later in the judgement, Wright J. says:-

“It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person …”,

but this is merely to describe the facts of the case to establish that the Defendant had intended the harm caused, and does not form part of the ratio decidendi. The fact that it was a shock-induced psychiatric injury, rendered the issue of causation less problematic, as the nexus between the Defendant’s wilful act and the Plaintiff’s injuries was more clear. The same comments apply to the line of cases stemming from Wilkinson -v- Downton.

Also, it should be noted that the 2nd Restatement of Torts in America, when dealing with this topic refers at Section 46 (1) to one causing another severe emotional distress, as opposed to nervous shock. It is in this context that the negligence case of Walker -v- Northumberland County Council is instructive. There, an employee worked as a social services officer with the Defendant for eighteen years. In November, 1986, he suffered a nervous breakdown due to the stress and workload attached to his work. He returned to work in early 1987 following assurances of support and assistance from his immediate superior. This support was very limited, and the Plaintiff was also required to clear the backlog of cases which had built up in his absence. Six months later he suffered a second mental breakdown, and was later dismissed for permanent ill health. The Defendant was found liable on negligence principles for failing to provide the additional assistance offered.

In Walker v- Northumberland County Council, the Plaintiff was in a stressful situation for all his working life, but even limiting this to the period of time when the Defendant was found to be negligent, the Plaintiff endured an extreme situation of stress for six months. In the course of his judgement, Coleman J. assessed the expert medical evidence and continued:-

“A given normal personality may develop mental illness when the character or the volume of work which has to be undertaken is intrinsically stressful, notwithstanding that less stressful work of equal volume might have no detrimental effect”.

It can be seen from this that the attention of Coleman J. was on the clearly diagnosed recognisable mental illness presented before him by the Plaintiff, and it was irrelevant whether the psychiatric difficulty was shock-induced or not. In the context of bullying or harassment in the workplace, it is likewise irrelevant from a medical point of view whether it arose in shock-induced circumstances or over a period of time. Given that Walker shows that the law has developed in tandem with medical knowledge and will acknowledge psychiatric illnesses which arise over a period of time, it is submitted that it is also legally irrelevant whether the Plaintiff’s illness derives from a shock or is arises over a period of time.

The focus of Coleman J. was on causation and the connection between the stress at work and the Plaintiff’s illness. There was evidence which established the Defendant’s negligence, and which directly related it to the Plaintiff’s second nervous breakdown. Similarly, the concern for prospective Plaintiffs will be evidential concerns affecting causation.

4. The action must be wilful.

The natural defence for an assailant bully, is that he did not intend to cause the harm he has inflicted. However, the issue of intention is not open to the word of the assailant, but is to be inferred by all surrounding circumstances. Just as a person who points a gun at another and pulls the trigger, clearly intends to shoot him, regardless of his protestations to the contrary, likewise, an individual who involves himself in a systematic programme of aggressive behaviour towards another, must be presumed to have intended the harm that arises from such conduct. In Bielitski -v- Obadiak, this principle was stated as that a reasonable man is expected to know “the natural and probable consequences” of his actions. Also, Section 8A of the 2nd Restatement of Torts in America, defines intentional conduct as where the individual desires to cause particular consequences or knows that they are at least substantially certain to result from his conduct. Therefore an assailant who knows that the natural and probable consequences of his actions is substantially certain to result in the danger of psychiatric injury to a victim, will have intended that result, even if he attempts to argue otherwise. It is quite likely that a person who recklessly disregards whether his conduct will cause such harm or not will also be found liable.

One might ask whether negligence has any application in the context of bullying, and it most certainly has. Under the principles of vicarious liability, an employer is liable for the torts of his employee which are committed in the course of and scope of his employment. One might tender the view that the employer does not authorise the use of bullying tactics by employees, but there is a difference between this and the notion of the scope of a person’s employment. It would be generally considered that an employee is under a duty to act for the furtherance of the better interests of the employer’s interests. If an employee adopts “firm management” or bullying tactics to achieve those employer’s interests, he is acting within the scope of his employment duties. As work-related bullying generally arises in the workplace itself as opposed to venues outside the workplace, the connection between the assailant’s actions and his employment is obvious.

Accordingly, where the employer has failed to address issues of bullying in the workplace either before they arise by preventative measures, or following complaints by swift and appropriate action, he may well be found negligent for failing to have in place proper systems to avoid the effects of bullying on employees. This is an important point for many employees as more often than not the employee aggressor would not be a mark for damages. It would also be a point for employers to consider whether they are insured to cover the wilful as opposed to negligent actions of their employees giving rise to liability.

One might then ask why Wilkinson -v- Downton is so important if negligence principles will ultimately apply. The principles of vicarious liability will only apply to render the employer liable, when the employee has committed a tortious action. Wilkinson -v-Downton sets out the basis upon which a tort has been committed in these instances, and is therefore the foundation upon which one might hope to make the employer liable for his failure to have proper work systems in place. Also, Wilkinson -v- Downton provides a direct cause of action in cases where the bully is the employer himself.

Constructive Dismissal: Shutting The Stable Door …

It is not unusual for victims of bullying to walk away from the source of their problems, and leave their employment unilaterally. In these circumstances, it may be open to them to bring forward a case for constructive dismissal before the Employment Appeals Tribunal. This has a number of problems:-

  • There is a natural limit on the jurisdiction of the Employment Appeals Tribunal, which cannot award damages above the level of two year’s gross salary of the employee.
  • The claim must be initiated within six months, which an employee experiencing psychiatric difficulties may well not be in a fit position to do.
  • In constructive dismissal cases, the burden of proof is placed upon the employee, and they are accordingly more difficult to achieve success in. In this context also, the employee will be required to show that he did all that was possible for him to seek to resolve the problem giving rise to the constructive dismissal, before he actually left his employment. This could well mean confronting the bully which may not be a savoury prospect. However, where the assailant is not the employer, the victim should complain to the next level of management, and seek to follow any grievance procedure that may be in place.
  • The E.A.T. would really be the wrong forum to seek redress for psychiatric injuries, if such is required, as the E.A.T. is more concerned with redress for unfair dismissal than compensation for personal injuries.

Nevertheless, some successful cases for constructive dismissal involving bullying have arisen.

In Byrne -v- RHM Foods (Ireland) Limited UD 69/1979, the claimant was the personal secretary of a marketing manager, both employed by the respondent. When the marketing manager was suspended, the claimant was assured of her job. However, work was entirely withdrawn from the claimant, and she was isolated from other managers. The keys to the filing cabinet she used were taken from her, and when they were returned, she was instructed not to use the filing cabinet without the prior permission of a manager. Her telephone was cut off. The claimant was diagnosed as having sever nervous strain as a result of this situation at work. The E.A.T. found that she was constructively dismissed.

In Walsh -v- Love UD 784/1994, the claimant was an employee in a hair salon who enjoyed a good working relationship with her employer, the respondent, until she joined a trade union, and sought her full annual leave entitlement. Thereafter, the respondent refused to speak directly to her, did not introduce the claimant to new staff, did not hand the claimant’s wages directly to her, did not inform her of customer appointments, prohibited a staff collection in the claimant’s favour for her wedding, and embarrassed her in front of customers. The E.A.T. found that she was constructively dismissed.

Conclusion

As matters stand, there is no obvious path to legal redress for the victims of bullying. Given the prevalence of this insidious behaviour in the workplace, it is essential that due and proper attention is afforded to the task of asserting these victims’ rights. To this end statutory reform is required, and there is the benefit of the Swedish example to follow in this respect. The recent case of Walker -v- Northumberland County Council gives renewed pause for thought, and it may well be that the neglected line of authority stemming from Wilkinson -v- Downton can be revitalised to give remedies in tort for these victims. Progress is now in sight.

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