The recent decision of A Scheduler v An Installation Provider  serves as a timely reminder that Irish-based employers will be held responsible for workplace bullying and harassment conducted by its employees and that it is vital for an employer to have an adequate Dignity at Work procedure in place.
The complainant in this case was awarded 18 months' remuneration as compensation for harassment and discrimination suffered by him during his employment.
Facts of the Case
The complainant alleged that he was regularly and repeatedly subjected to homophobic abuse and was harassed, victimised and discriminated against on the basis of his sexuality. The acts of discrimination and harassment were carried out by a co-worker ("Mr A") and included disparaging remarks about the Complainant and his partner and daily references to his sexuality.
The complainant made an internal complaint to his employer about the behaviour of Mr A. The complainant, Mr A and another employee were interviewed by the Operations Manager. The other employee gave evidence at the hearing that she informed the Operations Manager that she had heard and observed the discriminatory and bullying behaviour. The Operations Manager subsequently accused the complainant and the other worker of lying and told the complainant that he had wasted her time. No further action was taken on foot of the complaint and no steps were taken to address the actions of Mr A. The complainant's work hours were cut and his mental health deteriorated to the point that he sought treatment for depression and attended the A&E department of a hospital for panic attacks. He was ignored and isolated by the Operations Manager.
The respondent employer was not in a position to offer a defence or any mitigation as the office the complainant had worked in had since closed down and it held no records of the allegations or statements taken from the relevant employees.
The AO's Decision
The Adjudication Officer found the complainant to be "very credible" and significantly found that he had established a satisfactory connection between all the incidents complained of to constitute an ongoing act of continuing discrimination. This meant that the Complainant's case was not limited to claiming only in relation to incidents that occurred within the six- month timeframe before his complaint was made to the Workplace Relations Commission, as would usually be the case.
The Adjudication Officer ("AO") who decided the case was extremely critical of the employer's handling of the complaints and described the investigation as "disastrous". In his determination, he found that the treatment of the complainant by Mr A had created an intense, hostile, humiliating and offensive environment for him in the workplace.
The compensation awarded was intended to have a punitive effect on the employer and the AO stated 18 months' compensation was the appropriate award considering the seriousness of the discrimination and the sustained distress suffered by the complainant and the effects on his health.
Key Lessons For Employers:
- Irish–based employers will be held liable for acts of bullying and harassment committed by their employees.
- It is a defence in bullying & harassment cases for an employer to show that it took such steps as are reasonably practicable to prevent harassment from occurring in the first place and, in circumstances where such harassment has occurred, that it took action to reverse its effect.
- It is vital that employers have an adequate Dignity at Work policy in place, there are currently three Codes of Practice in place to provide guidance on the requirements of a Dignity at Work policy. It is intended that a single revised Code of Practice will issue, however, no timeline has been provided yet.
- In addition to having an adequate Dignity at Work policy in place, employers must provide appropriate employment equality training to employees.
- Where a complaint is made under the Dignity at Work policy, employers must take steps to ensure that the complaint is addressed and the employee is protected from any further acts of bullying.
- The employer in this case was unable to offer any defence or mitigation as it held no records relating to the complainant's complaints or the subsequent investigation. It is critical that any investigation of alleged incidents of bullying or harassment are documented for an employer to prove it took appropriate action to address the complaint. Any decision reached should be properly recorded and the basis for the decision adequately explained. Any employee accused of bullying or harassment is entitled to fair procedures. Any investigation into such allegations will require the employer to undertake a delicate balancing act of the employees' respective rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.