Protection of employees from workplace bul-lying should be a priority for employers as a matter of good management – and also to limit liability under health and safety, industrial relations and equality legislation.

A survey carried out in 2000 by the European Foundation for the improvement of living and working conditions in the 15 member states of the European Union reported that 9% of workers reported being subject to intimidation in the workplace and 2% of respondents reported sexual harassment. An Irish research survey in 2001 reported that one in every 12 workers in Ireland had experienced bullying.

A specialised bullying tribunal has been proposed and the recommendations of a report of an Expert Advisory Group on Workplace Bullying (2005) supported the establishment of such a forum.

Bullying and harassment are often classed together, but legally they are distinguishable. Workplace bullying has been defined, in a 2001 taskforce report, as "repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once-off incident is not considered to be bullying". The key element of this definition is that it emphasises that the bullying actions must be repeated and states that a oneoff incident is not considered bullying.

Harassment is discriminatory treatment because of a characteristic which is protected by the Employment Equality Acts 1998-2004 – for example, age, gender, marital status, sexual orientation, religion, race or disability.

Legal remedies for bullying or harassment include claims under the industrial relations acts, the health and safety legislation (which can impose civil and criminal penalties), constructive dismissal and personal injury cases in the civil courts.

Risk factors include:

. pre-existing medical conditions which trigger a duty on the part of the employer to ensure that the workplace does not expose that individual to unnecessary or excessive risks;

. excessive working hours;

. significant and unreasonable work pressures;

. diverse workplace constitutions, including part-time/non-permanent employees or a multicultural workplace.

An employer may be liable even if the harassment takes place outside of the work environment. This includes social events which the employee attended for the purpose of or in furtherance of work, such as the staff Christmas party.

In some recent cases where employees claimed damages for work-related stress, guidance was given by the courts to employers as to how to manage these kind of cases and to provide a safe working environment for employees.

Quigley v Complex Tooling and Moulding focused on an employer's liability for occupational stress. Quigley was awarded in excess of €75,000 (£50,000) for psychiatric injury suffered by him as a direct consequence of his employer's breach of duty to prevent workplace bullying. He claimed he was subjected to a campaign of harassment, bullying, humiliation and victimisation. Evidence was given of excessive scrutiny and unfair and unreasonable treatment by management. Despite frequent complaints about this behaviour, the company failed to take any reasonable steps to prevent or stop it.

In McGrath v Trintech, McGrath claimed damages for personal injuries, which he alleged he suffered as a result of occupational stress. While the judge found that the employer was not liable in this instance, she had no difficulty with the argument that health and safety legislation covers psychiatric health and injuries.

In Maher v Jabil, Maher claimed damages for stress arising from one period of alleged over-work and one period of alleged under-work. He failed on both counts, although it was held that he had suffered personal injury, which was caused by his work environment. The key issue for the court was the forseeability of his suffering the damage to his health.

An employer is not liable for effects on employees which are not reasonably foreseeable but where an employer is on notice that a particular employee is pre-disposed to stress-related conditions; has raised concerns about other employees or work situations; or that because of the make-up of the workplace that there was an increased likelihood of discrimination then it should take steps.

Such measures should include a review of policies and procedures, ensuring that bullying and harassment policy works and is understood. The annual health and safety risk assessment should include assessment of work systems, workplace constitution and risk factors for bullying. The Courts have emphasized the importance of having some form of programme to assist employees with personal issues and to allow them an effective 'voice' and a method by which they can refer grievances.

An employer's liability for claims relating to bullying, harassment and stress can be summarised as arising when an employer knew or ought to have known the workplace was unsafe or that the employee was at risk and failed to do anything about it. With increased penalties (both civil and criminal) for Irish employers under health and safety legislation, employers should, as a priority, review systems to ensure that they are protected against this type of claim.

Maura Connolly is a partner and head of employment law at Eugene F Collins in Dublin.