Upwards bullying – the risk of negligence claims by managers (UK)
Today we cross to the Emerald Isle for a recent lesson on bullying and negligence issued by the Irish Court of Appeal. Though not binding on the UK Courts, it is hard to see that any very different principles could apply here.
Ms McCarthy worked as Cleaning Supervisor in the Irish Hospital Service. She had run-ins with five of her subordinates over a period of nearly two years in which she was subjected to their “shouting and roaring” at her, leaving her feeling shaken and threatened on each occasion. She complained after each incident but little (or, to be more specific, nothing) was done either to warn off the subordinates or to support Ms McCarthy. The cumulative effect of these assaults (as the Court accepted they were) and the employer’s inertia was that Ms McCarthy developed material mental health issues and sued it.
The High Court Judge looked at whether the subordinates’ conduct could constitute bullying, and found it could not. First, the behaviour was occasional only, with gaps of six or more months between a number of the incidents, and not of the daily or weekly frequency which he thought concerted bullying might entail. Second, each incident was over in seconds, minutes at most, while any decent attempt at bullying (paraphrasing to a degree here) would require rather greater commitment. The Judge also said that you would look for “escalation of activity” because any bully worthy of the name, having identified a vulnerable victim, would “step up the pressure”, and for an imbalance of power. The Judge noted also that there was no sign of the subordinates acting together in any way – their individual roaring and shouting was entirely on their own initiative – and that in a workforce of some thousands, there had been no prior allegations of bullying. Therefore there was no bullying of Ms McCarthy, he said, just a further dropped stitch in the tapestry of “ordinary human life…full of upsets large and small“.
This is all completely fascinating stuff, of course, but unfortunately not actually the claim Ms McCarthy had made. She had instead based her case on negligence, in particular the employer’s failure to take reasonable steps to provide her with a safe place of work.
The employer knew that Ms McCarthy’s role as Supervisor could bring her into conflict with those she managed, especially given the very high standards of cleaning required in a hospital. That created a duty to take reasonable steps to protect the supervisor’s health against the consequences of such conflict. It knew also that the verbal assaults on Ms McCarthy were being made and (because of a period of some absence after the first one) that she was finding them hard to cope with. It had done nothing to pre-empt such assaults, or to support Ms McCarthy. These were almost all the necessary ingredients of a viable negligence claim and so the Court of Appeal sent the case back to the Irish High Court to rule upon the last, i.e. whether as an issue of fact the employer’s failure to act on Ms McCarthy’s complaints had been what made her ill as opposed to, say, the roughly contemporaneous breakdown of her marriage.
Lessons for Employers:
- As there is no freestanding legal claim for bullying the UK, don’t spend too long in looking for the High Court’s indicators of it.
- The question is instead whether the conduct in question may foreseeably cause the victim of it to become ill. Not just unhappy, irritated, alienated, disheartened, miserable or other emotional reactions to being shouted at unjustly (those are just life’s upsets, large and small, etc.), but actually ill. Normally employers can expect a degree of resilience from those in management positions such that illness would not be foreseeable. However, as soon as you know that the employee is not coping (as evidenced here by Ms McCarthy’s complaints and absence) the foreseeability hurdle is surmounted immediately.
- The Irish High Court Judge was unclear as to what the employer could or should have done to deal with Ms McCarthy’s complaints: “Were they supposed to bring all three and a half employees [This reference is not explained in the Court of Appeal Judgment but I think it must relate to part-time working rather than the result of some horrible industrial accident –a gallant attempt at levity, perhaps, at a clearly inappropriate moment] one by one into….a room, close the door, sit the person down and lecture them about [how McCarthy] had reacted in a particular way…..and put them on notice of a warning and possible dismissal if anything of the sort occurred again? I mean, no workplace could operate on that sort of basis”. Well yes, actually – that is exactly the sort of thing it should have done. I am all for mediation in cases of supervisor-subordinate misunderstandings and communications failures, but this was misconduct pure and simple. A pre-emptive carpeting of that sort would have gone a very long way towards dispelling any view that it was OK to roar and shout at Ms McCarthy because there was never any comeback for doing so.
- So pay attention to complaints made by staff, whether about bullying or overwork, especially if accompanied by actual time off sick. You may think there is nothing to it, but if you don’t look into it you won’t know, and if you’re wrong the damages could be very substantial.
- For further comment in relation to breach of health and safety duties see our blogs here: Part-1 Part-2 Part-3