Harassment Case Law

Margaret Kelly v Bon Secours Health System Limited [2012]

In Margaret Kelly v Bon Secours Health System Limited [2012] IEHC 21 the plaintiff was awarded €90,000.  The case involved two aspects, the second being alleged harassment, bullying, abuse, intimidation and discrimination in the course of her employment with the defendants.  Here, the Court acknowledged the employer’s duty of care in relation to bullying and harassment. The defendant’s conduct was strongly criticised by the Court on a number of matters such as the alteration of normal work practices to open a permanent position to “outside candidates” to the detriment of the plaintiff, and the interference with the mediation procedures by the defendant.

The High Court accepted that the plaintiff’s view was coloured by her personality and that she was clearly a person subject to stress but the defendants “were or ought to have been aware of this fact from a very early stage as they knew her history” with a previous employer, and also her marital background.

Accordingly the defendants were found to be prima facie liable for the alleged bullying and harassment of the plaintiff insofar as she had suffered an actionable injury as a result. The Court rejected the employer’s defences inter alia of contributory negligence against the plaintiff and in particular that she failed to involve herself in its grievance procedure and to engage with them. It also rejected the contention that the plaintiff could not proceed with a number of her grievances due to findings by the Labour Relations Commission and others. On damages, the Court said that although any assessment of the plaintiff must conclude that she had come to the view, wrongly, that all the actions of the defendants were motivated by some malice against her, it was clear that at management level they were motivated by hostility to her stemming initially from the time of her accident. As the trust between the plaintiff and the defendants had irretrievably broken down, and the plaintiff would not be likely to return to work, an award totalling €90,000 was ordered.

O’Brien v Persian Properties trading as O’Callaghan Hotels [2012]

In this case the Equality Tribunal awarded €315,000 to the complainant.

The complainant, Julie O’Brien was Director of Sales and Marketing with O’Callaghan Hotels and gave birth to two children during her time with the group, the first in 2005 and the second in 2008. She gave evidence to the Equality Tribunal that during both pregnancies she was put under significant pressure by management in relation to her work and ended up working through her maternity leave, receiving work-related call, documents etc.  She also stated that the MD was very negative in relation to her having children and said to her that he would prefer if she left the business if she should have a third child.  He later apologised for the remark.

After the birth of her second child, Ms O’Brien had two miscarriages and, when she became pregnant for a third time in 2009, she claimed that she sought a ‘stress free’ maternity leave.  Ms. O’Brien claimed, after several meetings with her employer, some of which were headed, her employer asked her to resign.  She was signed off sick on work-related stress. Despite sending in medical certificates to say that she was ill, on 10th August 2009 she received a letter from the General Manager to arrange a meeting to complete the handover of any outstanding issues. Ms. O’Brien also claimed her fuel card that was provided by O’Callaghan Hotels was revoked without warning and that access to her work blackberry was blocked.  She was later sent a letter asking her to return all company property e.g. her mobile phone, credit card and fuel card, even though these were normally retained by employees on holiday, maternity leave etc. She engaged a solicitor who wrote to the respondent and said the complainant would resign at the end of her maternity leave.  Ms. O’Brien claimed that the actions of O’Callaghan Hotels significantly increased the stress she was suffering.  In September 2009, she went into premature labour and her baby was stillborn.  She suffered an acute grief reaction.  She claimed constructive dismissal and that the following incidents constitute victimisation.

  • When she asserted her rights and requested a four-day week during her second pregnancy, the MD’s hostile reaction and his statement that he would not be happy to retain her in his employment is she had a third child
  • Applying pressure to resign after she informed the respondent that she was pregnant and intended not working during her maternity leave
  • Not paying her for most of her third maternity leave when she was paid her full salary for the previous two maternity leaves
  • Blocking access to the blackberry phone and fuel card provided to her by the respondent

The respondent disputed almost the entirety of Ms O’Brien’s evidence in relation to the circumstances leading up to the termination of her employment (particularly in relation to discussions that took place between Ms O’Brien and members of management). The respondent also said the complainant wanted to be involved during maternity leave and set up an office for this purpose.  They denied harassing her and said they wished to facilitate her resignation that she requested.  It was not enforced and she was extremely happy.

However, the Equality Tribunal preferred the evidence of Ms O’Brien on all counts and the Equality Officer sent out a strong message to other employers stating that “The award must also dissuade O’Callaghan hotels and other employers from unlawful discrimination” and ordered the respondent pay the complainant:

(a)  €225,500 (the equivalent of 21 months’ salary) in compensation for the harassment and discriminatory dismissal

(b)  €94, 500 (the equivalent of 9 month’s salary) in compensation for the distress caused by victimisation