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September 2006

Bullying in the Workplace

In our Autumn 2006 Business Law Update we considered the question of whether there was an ability to dismiss an employee who was incompatible with others within the workplace. The purpose of this article is to look at the issue of bullying in the workplace. This goes beyond mere incompatibility.

Why is it important to put an end to bullying

Every employer has a duty to provide an employee with a safe workplace. That includes both physical and mental safety. Furthermore, an employer must not conduct themselves in such a way that it will destroy the relationship of trust and confidence which should exist between an employer and their employee. If an employer allows bullying to continue, then there is a risk the employer will be found in breach of its duty to provide a safe workplace and furthermore, in breach of its duty not to destroy or damage the relationship of trust and confidence.

In addition, the Health and Safety in Employment Act 1992 puts a statutory obligation upon employers to keep its workforce safe from physical and psychological harm, which arguably would include bullying.

Examples of bullying behaviour

Bullying may take place between employees at the same level in a workforce or may take place between managers and subordinates.

The following types of behaviour, when repeated with the intention of causing fear, have been held to amount to bullying:-

1. Repeated verbal abuse and name calling.

2. Threats to kill.

3. Pushing an employee repeatedly out of the way, in particular when the employee was serving customers at the counter.

4. Overbearing and intimidating behaviour.

Behaviour not amounting to bullying

When considering various behaviours and whether they amount to bullying, the Employment Relations Authority has taken into account the following:-

1. Whether the employee is “a sensitive person”.

2. The nature of the workplace.

The difficulty in determining whether behaviour is bullying.

In one case, the employee accused her manager of bullying. She described him as “condescending and overbearing” and accused her manager of having told her to “shut up”. Problems between the two culminated in the manager telling the employee that she may as well “pack her bags and go”.

The Authority held that the manager was “very businesslike and efficient”. However the Authority held that the employee was a sensitive person and the behaviours complained of fell within the range of what could be expected in the workplace.

This is to be compared with a later decision of the Authority where the office manager was described as “overbearing and intimidating” and a complaint was made that she talked down to people and publicly reprimanded staff. Another employee was allegedly called a liar and accused of being immature by the manager. Despite similarities to the previous case, the Authority found that the employer was justified in dismissing the manager because of her alleged bullying of her subordinate staff.

The only difference between these two cases appears to be that in the latter, there were three complainants all complaining of similar conduct, and secondly, that there was no finding that any of the complainants were “sensitive”.

The consequences of not dealing with an allegation of bullying
Unresolved bullying has a number of consequences for both the employee and employer as follows:-

1. The failure to address a bullying problem is likely to lead to the employee leaving, leading to increased turnover in employees and the associated costs to the employer of that.

2. If bullying is not addressed, and the employee leaves after having made the employer aware of the problem, the employer faces the possibility of a personal grievance for unjustified dismissal and/or unjustified disadvantage, breach of contract and possible breach of the health and safety requirements.

3. Care must also be taken if disciplining the alleged bully, that a proper process is followed so that a personal grievance does not arise between the alleged bully and the employer. 
It is clear from the above that employers must ensure that they deal with any allegation of bullying promptly and carry out a proper investigative process. Failure to do so can leave an employer exposed to a grievance either by the alleged victim and/or the alleged perpetrator.