The subject of bullying at work recently returned to the headlines, as Matrix Recruitment’s Workplace Equality Report reveals that almost 90% of workers in Ireland agree that bullying remains a significant issue, with about one in three claiming that they have personally experienced bullying or harassment at work. Even more disconcerting for HR practitioners is the survey’s finding that though 55% of respondents have reported such issues to HR or senior leaders, only 20% felt they were resolved promptly and discreetly. These findings tally with previous surveys in the area, serving to call into question the effectiveness of the 2020 ‘Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work’  https://www.workplacerelations.ie/en/what_you_should_know/codes_practice/code-of-practice-for-employers-and-employees-on-the-prevention-and-resolution-of-bullying-at-work/

The subject’s status is also evident from the initiation of a Government investigation of bullying and harassment in the Defence Forces, which was recently pressurised into proceeding as a public Tribunal of Inquiry https://www.toidf.ie/introduction . And dovetailing with this process is the long running case of Lois West’s complaints of bullying at An Garda Siochana, that recently took a turn for the worst with the demand that the WRC’s Adjudication Officer (AO) recuse himself.

Bullying and Flawed Investigations

A review of recent case law in this area offers some insight as to the reasons for the persistence of this ‘inappropriate behaviour’ problem. For example, in 2022 the familiar failing of a flawed investigation featured in a bullying scenario, when the WRC compensated an operative due to procedural breaches in the investigation. The complainant claimed that he was bullied and was unhappy with the subsequent investigation process. The WRC’s AO found that the investigation was compromised in a number of respects, thus failing to meet ‘the standards required of a fair and proper investigation’. These included allowing the accused to be represented by a witness, thus creating the potential for ‘contamination as well as conflation of evidence’, together with the absence of a plausible explanation for the protracted nature of the investigation (ADJ-00035638). In the same year a WRC adjudicator found against a social media company in a case that included shortfalls in handling a bullying complaint. In this instance it was pointed out that the respondent didn’t provide the employee with a copy of a report into her bullying complaint, and whilst this report ‘on the face of it records a process that is fair, the actions of the company do not demonstrate a considered and open process’. Instead, it was held that the process ‘appears to be a tick box exercise and significantly fails to live up to the stated policy of the company to investigate such matters fairly’. Furthermore, it was noted that there was ‘undue haste’ in dismissing the bullying complaint, alongside the failure to provide the written report for the worker to comment on before finalising a course of action (ADJ-00035724). 

In a separate case referencing a flawed bullying investigation in 2022, a golf club was directed by the WRC to pay its administrator €25,000, as both the investigation and associated appeals process were deemed to be defective. This decision was influenced by the fact that the employees were not familiar with the respondent’s bullying and harassment policy and no training had been provided on the subject. Notably, the AO elaborated, pointing out that: ‘unfortunately, [this is] a common occurrence .. employers need to make provision in their annual budgets for ongoing HR training and review, like fire safety’ (ADJ-00028647).

Late last year a Heineken brewery worker – who was the subject of bullying complaints - was awarded €18,000 at the WRC for his summary dismissal for ‘gross misconduct’. In this case the AO held that limits were put on the bullying investigation to the extent that it ‘fundamentally fell short of the requirement .. to decide whether bullying and harassment took place’, adding that: ‘as any investigator .. would appreciate, an investigation into bullying in the workplace must consider the underlying culture that existed because the norms and expectations within a given workplace can significantly impact the prevalence and nature of bullying behaviour’ (ADJ-00043446).

In another flawed investigation case just last year, the WRC took a dim view of a ‘policing organisation’, when a worker (against whom bullying allegations were made) had to wait nearly five years for the investigation outcome. The AO awarded him €18,000, due to an ‘inexplicable’ delay, that was aggravated by a failure to determine whether the worker had any objections with extensions to the investigation’s time limits (as required under the organisation’s policy). Though extensions were granted on a continuous basis during the investigation, the worker’s permission was never sought in respect of same. This failure was deemed to be in breach of the employer’s policy. As a result, the Commission directed that the employer should ensure that the organisation’s policy meet statutory requirements and that their investigators be made aware of relevant procedures, time frames, responsibilities - and that appropriate training be provided (IR-SC–00001890).

Bullying and Constructive Dismissals

It is also notable that in a number of recent cases, the bullying theme has surfaced before third parties in the context of alleged victims or perpetrators resigning and subsequently claiming constructive dismissal.  For example, in 2022 the WRC held that an employer failed to observe the provisions of the aforementioned Code of Practice, when a warehouse operative won his action for constructive dismissal, after claiming that he was bullied and harassed. His mistreatment materialised after he had complained to management about a safety issue. The WRC’s determination focused on the Code’s requirement that an employer act reasonably in assessing (bullying) complaints and then put in place suitable responses. However, in this instance the respondent failed to do so (ADJ-00033100).

In the same year, the WRC ruled that a former Tesco employee was justified in resigning his post, following what amounted to a sustained campaign of bullying at the hands of his store manager. It concluded that the bullying behaviour was so ‘sufficiently intolerable and injurious to his health as to constitute a significant breach of the employment contract’. The complainant was awarded €15,000, to cover the period from his departure to imminent retirement. Notably, in this instance it was held that the claimant met the ‘constructive dismissal’ tests of ‘contract’ and ‘reasonableness’ (see https://legal-island.ie/employment-law-hub/how-to-avoid-a-constructive-dismissal-decision) (ADJ-00034404).

Then in the following year (2023), a financial controller was awarded €27,000, after her resignation (or constructive dismissal), stemming from frustration at her employer’s failure to deal with her bullying and harassment complaints. The AO noted that though the respondent had a grievance procedure and bullying policy, it ‘circumvented its own procedure’ in failing to engage with the complainant ‘in a meaningful manner’ (ADJ-00033717).

Significantly though, just late last year the Labour Court issued a determination where it held that the aforementioned ‘contract’ and ‘reasonableness’ tests had not been met, when it rejected an appeal by an SSE Airtricity employee, who maintained that she was constructively dismissed. The claimant alleged that she was subjected to ‘exclusion and bullying’ by team members and that she was ‘ignored’ when she brought the matter to the attention of her line manager. In this instance, the Court reminded parties that there is a high burden on a person bringing a claim for constructive dismissal, as the claimant is obliged to demonstrate that their resignation arose because of a repudiatory breach of contract or unreasonable behaviour on the respondent’s part. However, the Court was satisfied that the respondent had shown that it had a formal procedure in place to deal with workplace grievances and allegations of bullying and harassment. Notably, the appellant confirmed that she had access to them, but didn’t seek to use them. This failure enabled the Court to conclude that in such cases a claimant is obliged to meet the ‘reasonableness’ test and that the employer had not behaved in such a manner as to warrant her resignation (UDD2446).

Likewise, in 2022 a tutor failed to sustain her bullying allegations when bringing a claim of constructive dismissal to the WRC. The fact that the tutor didn’t utilise her employer’s grievance procedure - and also failed to establish that her employer’s conduct was such as to leave her with no option but to resign - meant that she came up short in making the (constructive dismissal) claim. The WRC’s AO noted the failure of the complainant to raise her bullying allegations internally (prior to the WRC hearing), even though the alleged bullying incident had taken place 10 months prior to her resignation. (ADJ-00025369).

In the following year (2023), the Commission deemed that a pregnant worker was not constructively dismissed following her complaints of bullying, as the issues that she raised did not satisfy the accepted standards of bullying (i.e. repeated actions over a period of time etc.). (ADJ-00033642). And just last year, chocolate manufacturer Lily O’Brien was exonerated when the Commission’s AO concluded that the complainant was aware of the respondent’s bullying and harassment procedures, but ‘did not exhaust, or even commence, internal procedure before resigning’ (ADJ-00045849).

Flawed Bullying Investigations and Constructive Dismissals Overlap
It is also notable that in a number of recent cases before a third party, the issue of a flawed bullying investigation and an alleged constructive dismissal have surfaced. For example, in 2022 a woman working with Travellers won her constructive dismissal claim, as the WRC found that the appointment of the chairman of the board to conduct an appeal of an external investigation into her bullying grievance was ‘inappropriate’. The Commission also described the relevant appeal’s process as ‘quite calamitous’, given that the appeal officer had an association with those involved in the complainant’s grievance. Notably, the AO also pointed out that even if the appeal officer wasn’t biased, the ‘perception of bias’ attached to the relevant party was problematic (ADJ-00029418).

At around the same time, the flawed investigation and constructive dismissal issues overlapped again at the WRC, giving rise to a €7,000 award. In this instance, an energy firm’s refusal to accede to requests from an employee – who was the subject of and had made complaints of bullying – for representation by his trade union, was deemed unreasonable behaviour and an ‘ongoing and persistent procedural flaw’. The employee was denied representation rights, disciplined and then resigned, citing the respondent’s failure to afford him fair procedures alongside his ‘ongoing mistreatment’ (ADJ-00028021). 
Another such overlap surfaced in the following year (2023), when the WRC held that the Fingal Partnership had constructively dismissed a senior employee, when its CEO formalised issues by invoking the organisation’s bullying prevention policy. The CEO had upgraded a fellow employee’s grievance (against the complainant) to a formal complaint under the organisation’s policy. However, the AO concluded that initiating a formal investigation into what was an informal grievance was ‘inflammatory’. Hence, it was held that the complainant didn’t act unreasonably when she resigned (ADJ-00037674).

Other
Of course, the subject of bullying at work has also surfaced at third party hearings recently in respect of a selection of more straightforward (alleged) failings For example, last year a construction company fell foul of the law when the WRC deemed that it had unfairly dismissed a probationary worker, after it had ‘completely ignored’ her complaint of bullying (ADJ-00043674). Whilst in 2022, a sales executive - who was dismissed for breaching the employer’s bullying policy - was awarded (the then) record compensation of almost €330,000 at the WRC. In this case, the dismissal was deemed to be both substantively and procedurally unfair. Whilst the Commission was satisfied that the complainant engaged in inappropriate behaviour, his actions ‘fell a long way short of warranting dismissal’ (i.e. the punishment didn’t fit the crime). The Commission’s AO also noted that training had not been provided on the company’s policy on bullying and harassment, whilst his treatment (by the respondent) displayed a ‘lack of decency, humanity and dignity’ (ADJ-00027573). 

Somewhat similarly, in 2023 a Sales Manager was awarded €25,000 at the WRC, as though the respondent was able to show that it had policies in place in relation to bullying and harassment, there was a lack of ‘meaningful communication of those policies to employees’. Notably, in this instance the respondent was also directed to review the policy and to ensure that it be effectively communicated to staff alongside the provision of appropriate training at regular intervals (ADJ-00039112). A similar scenario surfaced in 2024, in a successful claim against a security company. This hinged on its failure to provide a copy of its bullying and harassment policy at the WRC hearing or to confirm that the complainant had signed off on a ‘Blue Book’ that contained all of the relevant policies and manuals (ADJ-00045361).

Then just last year, a shop worker was successful at the WRC with her claim under the Safety, Health and Welfare at Work Act, as she claimed that she was subjected to a litany of bullying behaviours by her store manager. Whilst out on sick leave the complainant reported her concerns to HR. After an investigation the manager was subjected to the disciplinary procedure. However, the complainant claimed that the matter was not dealt with properly, as she returned (from sick leave) to an ‘unsafe’ work environment, where she was rostered to work with the same manager, without adequate precautions in place to ensure she was not vulnerable to further bullying (ADJ-00045134).

In the previous year (2023), a Special Needs Assistant who claimed that he was subjected to bullying and harassment for ten years was advised by the WRC to take the internal procedures’ route, as he hadn’t exhausted same prior to lodging his complaint. The complainant claimed he had been subjected to inappropriate behaviour by a teacher in his workplace and despite raising concerns with local management (i.e. with successive school principals), he argued that nothing was done to address his concerns. However, the WRC was satisfied that the employer had made every reasonable effort to address the matters raised and that the employee’s withdrawal from the investigation process was perplexing, as he should have familiarised himself with the relevant policies and procedures, ‘as he would have been disabused of the notion that an informal ‘chat’ constituted the formal raising of an issue’ (ADJ-00039415).

In the same year (2023), the Labour Court ‘set aside’ a WRC decision in a case where a worker submitted a ‘comprehensive complaint under the Employer’s Dignity at Work policy’. A preliminary screening of the complaint determined that none of the numerous examples cited met the required standard of bullying. The worker sought to appeal the decision via an independent third party, but the Court held that: ‘the agreed procedure was followed, the Worker was advised of other processes such as mediation and the grievance procedure through which her concerns could be addressed but she chose not to avail of them’ (LCR22748).

Conclusion
The key provisions of the aforementioned 54-page Code of Practice associated with bullying prevention and the treatment of complaints have previously been summarised by Legal Island ( https://legal-island.ie/employment-law-hub/how-to-eliminate-exposure-to-claims-of-bullying-at-work; https://legal-island.ie/employment-law-hub/how-to-be-an-effective-support-contact-person-under-your-organisations-dignity-at-work-policy ; https://legal-island.ie/employment-law-hub/how-to-be-an-effective-nominated-person ; https://legal-island.ie/employment-law-hub/how-to-conduct-workplace-investigations-natural-justice-and-proper-procedure; together with the principles, precedents and prescriptions associated with constructive dismissal ( https://legal-island.ie/employment-law-hub/how-to-avoid-a-constructive-dismissal-decision/ However, despite these initiatives, repeated national survey data indicates that bullying continues to be ‘a widespread issue’ in Ireland’s workplaces.