Categories
Employment Claims Health and Safety

Employers’ Liability in Negligence Claims-the Essentials

employers negligence

“Duty of care” is a phrase that you will hear bandied about often.

What does it mean, though? What is the extent of that duty of care?

What happens if an employer is in breach of that duty?

Let’s take a look, shall we?

 

It is well settled law that an employer owes a duty of care to his/her employee(s). The employer’s duty is not an unlimited one though, and he is not an insurer.

He will have discharged his duty if he does what a reasonable and prudent employer would have done in the circumstances.

Therefore for an employee to succeed in a claim of negligence he must prove how and why the employer was in breach of his duty of care.

Courts have not laid down one single duty of care but have recognised that it will vary in the circumstances depending on the employee’s age, experience, knowledge, and the risks inherent in the particular type of work.

The Courts have laid down general guidelines as to the extent of the duty of care:

  • There is no obligation to warn of obvious risks
  • Reasonable care is what is required of the employer
  • An argument that an employer was guilty by omission will be closely scrutinised on the basis that it is easy to be wise with the benefit of hindsight.

Employers’ Liability in Negligence v Breach of statutory duty

The negligence action depends on whether the employer acted unreasonably or not. A claim for breach of statutory duty depends on the precise terms of the particular statutory provision and what is the duty set out. The Safety, Health and Welfare at Work Act, 1989 and 2005 looms large in this context.

An employee can sue for either or both of these causes of action.

Is the employer only liable for physical injury?

No, provided a duty of care can be established an employee who suffers a psychiatric/psychological injury or pure economic loss as a result of the employer’s negligence should be entitled to compensation.

Psychiatric Injury

An employer who is or ought to be aware that an employee is working under such pressures as to cause his mental health to break down owes a duty to take reasonable steps to deal with the problem. (Please refer to this article and this article for more information about non physical injuries in the workplace).

Property Damage

There is a reluctance of the courts to accept that the employer is liable for an employee’s property damage where there is no physical injury/damage. Therefore, it is clear there is an obligation on the employer in respect of physical injury but not property damage on its own.

Assessment of Employer’s Liability

The scope of the duty of care is generally assessed under 4 headings:

  1. The provision of competent staff
  2. The provision of a safe place of work
  3. The provision of proper equipment
  4. The provision of a safe system of work.

Competent Staff

It will need to be shown that the employer was aware of the staff incompetence. It may also be the case that failing to provide competent staff may fall under the heading of failing to provide a safe system of work through inadequate supervision of employees.

Safe Place of Work

The employer must ensure a reasonably safe place of work. The employer’s obligation is not to make accidents impossible, and it will be “a matter of degree and fact” in every case involving premises not under the employer’s control, for example, a worker visiting a house as a home help.

Again, the employer has a legal duty to take reasonable care to provide proper appliances/equipment and maintain them in a proper condition.

However, where the employer supplies a standard tool with a latent defect which he had no means of discovering, the employer may avoid liability in negligence if the employee is injured.

Safe System of Work

There is no definition of a safe system of work and safe will mean “as safe as reasonably possible in the circumstances”. This will obviously depend on the particular job.

Lifting weights would be a significant part of a safe system but at the employer only needs to take reasonable care to withstand a negligence claim the 3employhee will probably have greater protection from the various statutory provisions/regulations made concerning health and safety, lifting weights etc.

Ensuring a safe system in work would certainly involve proper training, depending on the job eg lifting weights, turning patients etc.

From an employer’s perspective, it is not enough to merely provide a safe system but he must ensure that the system is adhered to.

The provision of a safe system can cause particular difficulties for the defence forces and security firms.

Employer’s Negligence Must Have Caused the Injury

It is not enough to show the employer was negligent; the injured party must show this negligence caused the injury complained of and the injury was reasonably foreseeable.

The contributory negligence of the employee will be a factor in assessing any case but in an employment situation it will be the employer who will be setting the standard of care. Also, the junior status of an employee may prohibit him from complaining and an employee’s desire to get on with the job may be praiseworthy rather than amounting to contributory negligence on his behalf.

Voluntarily Assumption of Risk

It used to be a defence that the employee voluntarily assumed the risk; however, this defence has practically disappeared in cases of common law negligence.

Conclusion

The employer’s duty of care will be discharged if he does what a reasonable and prudent employer would have done in the circumstances.

If he has not done this he may be liable for an injury arising from that failure, provided the negligence caused the injury.

Categories
Health and Safety

How to Deal With Bullying in the Workplace

workplace bullying

Have you experienced the stomach churning feeling associated with bullying?

Are you an employer concerned with how to deal with bullying in the workplace?

I recently gave a talk to an anti bullying group in Mullingar, the Midlands Anti Bullying Network.

Below are the slides from that talk.

Bullying in the Irish Workplace-How to Deal with Bullying from Terry Gorry
Categories
Employment Claims Health and Safety

Workplace Bullying and Non Physical Personal Injuries Claims-What You Need to Prove

workplace-bullying

Are you being bullied at work? Perhaps you have a family member, friend or colleague who has complained of being bullied?

Many people, unfortunately, are bullied at work.

Thankfully, you don’t have to suffer in silence. There are solutions.

In 2014, for example, there was an important High Court case-Una Ruffley and the Board of Management of St. Anne’s School-which saw Ruffley, a special needs assistant in a primary school in Kildare being awarded €255,000 .

Note: this High Court decision was overturned on appeal. Read about that decision here.

The case is a useful one to take a look at because it restates certain principles and proofs required to win a case for a personal injury arising from alleged bullying in the workplace.

Quite frankly it is not simply enough to show that you have been bullied. You must also prove you suffered a personal injury as a result.

Background to Ruffley -v- Board of Management St. Anne’s School

The background to the case was after an incident involving the locking of the door of the school’s “sensory room”, the school Principal, Pauline Dempsey, brought the SNA to a meeting and warned her of disciplinary action.

However she later wrote to the SNA advising her that no action would be taken. However, there was to be a three month review of the SNA’s performance.

The review of the SNAs work involved the filling in of a form which led to a difficulty with the Principal accusing the SNA of a “falsification” of the review form.

The Principal then brought the original incident involving the locked door and the performance of the SNA to the Board of Management. The Board recommended that the SNA receive a formal warning and that her next salary increment be deferred.

The Judge in the High Court doubted that the Principal had outlined the full facts surrounding the difficulty to the Board.

The Principal then gave the SNA a letter stating that an investigation had been carried out and if there was a further breach of school policy there could be further action including dismissal.

The High Court held that there was no such investigation and that the SNA had been subjected to a disciplinary sanction that was severe and unmerited.

Workplace bullying defined

Firstly Judge O’Neill referred to the definition of workplace bullying as defined in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:

“Workplace Bullying is 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 Judge also referred to the Supreme Court decision:

“In Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. at 349, it was held by the Supreme Court that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work. Furthermore, in his judgment, Fennelly J. said:

“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.””

Judge O’Neill said in his judgment:

“It useful to reflect on what had happened to the plaintiff up to this point in time. The plaintiff was subjected to a disciplinary sanction of a severe kind which was unmerited

The manner in which the disciplinary process with regard to the locking of the Sensory Room door was handled by Ms. Dempsey was grossly unfair to the plaintiff and utterly denied her the benefit of her constitutional right to natural justice and fair procedures.

The conjuring up by Ms. Dempsey of the additional offence of failing to improve during the review process and of the “falsification” of the review forms was, as discussed earlier, at best, irrational, in the sense of there being a complete lack of any real basis for such conclusions. It is hard to understand how an educated, sophisticated person, such as Ms. Dempsey, could arrive at such conclusions without an element of bad faith.”

“I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.”

Repeated inappropriate behaviour over a period of time

“Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”

An identifiable psychiatric injury

The need to prove that you have suffered an identifiable psychiatric injury is a critical proof to win your case for non physical personal injuries.

“The next question to be considered is whether or not the plaintiff has, as a result of the conduct of the defendants, suffered an identifiable psychiatric injury as indicated in the passage from the judgment of Fennelly J. in the Quigley Complex Tooling & Moulding Ltd. case quoted above.”

“The plaintiff has given evidence to me, which I accept, that from October/November 2009, she began to experience high levels of stress caused by what she perceived as the unfair treatment of her by the defendants, and in particular, Ms. Dempsey. As time went on, and not only was the problem not being resolved but it was getting worse, as she saw it, I have no doubt that these symptoms of stress became much worse, and I accept that from around March 2010, she was suffering constantly from headaches, insomnia, diarrhoea and high levels of anxiety. All of this persisted through the summer months of 2010, and she eventually attended her General Practitioner, on 19th August 2010, complaining of frontal facial temple headaches all summer, that she could not think straight, all related to a bullying issue at school. Her General Practitioner diagnosed muscle contraction headache and prescribed medication for her. She attended her General Practitioner again on 28th September 2010, with similar complaints, with the addition of some neck pain. The General Practitioner put all this down to stress related to bullying.”

“I have no doubt that the imminent return to school after the summer holidays had a heightening effect on her stress and anxiety at that time. On her return to school, a further episode with the Principal, Ms. Dempsey, occurred on 27th September 2009.”

“This incident, in the ordinary course, would not have been of any great consequence, but for the plaintiff, it was the last straw. She felt she could bear it no more and found the stress of continuing in the school intolerable. I have no doubt that at that stage, she had a heightened sense of apprehension in all her dealings with Ms. Dempsey, having regard to all that had happened in the previous year. As a direct consequence of this incident, the plaintiff felt she could no longer continue in the school and she went out on certified sick leave due to work-related stress.”

“Prior to 2009, the plaintiff had two previous episodes of Depression, one of which was a postpartum Depression and the other a reaction to bereavements. She required anti-depressive medication for these but she recovered fully on both occasions. However, and the evidence of Dr. Byrne, a psychiatrist called for the plaintiff, satisfies me in this respect, having suffered previous episodes of Depression, she was predisposed to further depressive illness. I am satisfied on the evidence of Dr. Michael McDonnell, her GP, and Dr. Byrne that the plaintiff suffered an Anxiety and Depressive Disorder resulting from her reaction to what had happened to her in St. Anne’s School from September 2009 through to September 2010. This resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and an inability to cope with everyday life. All of this rendered her incapable of returning to work in the defendants’ school, and all of that, allied to her fear that she would not have a good reference, inhibited her from seeking employment elsewhere. As a result, she has not worked since 27th September 2010.

She has been on anti-anxiety and anti-depression medication since late 2010, and she attended the Kildare Mental Health Services in Newbridge on a regular basis where she was prescribed anti-Depression medication. Her situation has not improved over the intervening period. An examination of her by Dr. McDonnell in February 2014, included the completion of two questionnaires, namely, the General Anxiety Disorder Assessment and the Patient Health Questionnaire, the results of which indicated she was suffering from a severe anxiety state and severe Depression. I think it probable that the impending litigation was, at that stage, worsening her symptoms, but that notwithstanding, there can be no doubt that she has, since late 2010, suffered from a significant anxiety and depressive disorder and that continues to afflict her.

Dr. Byrne’s evidence was to the effect that she has to continue with her medication and other forms of support and therapy which should enable her to recover her whole sense of personal safety and her sense of self-worth, and to enable her to have a feeling of control of her life. With all of that, she could look forward to a gradual reintroduction to a work situation. It would seem to me to be probable that when this litigation is concluded, there is likely to be a significant improvement in her anxiety and depressive state. I would think it probable, having regard to Dr. Byrne’s evidence, that she will have the capacity, in due course, to return to fulltime, gainful employment.”

In conclusion, the Judge stated that:

“I am satisfied that the plaintiff has suffered a definite and identifiable psychiatric injury from which she still continues to suffer significantly and will continue to do so for some time into the future. Therefore, she must be compensated for her pain and suffering in that regard to date and into the future. In my opinion, the appropriate sum to compensate the plaintiff for her psychiatric injury to date is the sum of €75,000. Insofar as the future is concerned, as already mentioned, the probability is that she will improve and go on to recover over time, particularly when this litigation is finalised. With that in mind, in my opinion, the appropriate sum to compensate her for her psychiatric injury for the future is the sum of €40,000, making a total for general damages of €115,000.

The plaintiff’s loss of earnings up to 6th March 2014 was agreed in the sum of €93,276.39. There was some suggestion that there may have been some deductible benefits which would reduce that figure, but the court was not told if that was so or what the amount thereof should be. That being so, I must proceed on the basis that there are no deductible social welfare benefits.

In my view, the plaintiff is entitled to recover the foregoing sum, and as it is clear she will probably not be able to return to gainful employment for some time yet, is entitled to recover damages in respect of future loss of earnings. I think it probable that with appropriate treatment, she will be fit for such employment in the relatively near future, and accordingly, I would award her half the foregoing sum again in respect of future loss of earnings, namely, €47,000, making a total of €140,276 in respect of loss of earnings past and future.

Accordingly, there will be judgment for the plaintiff in the sum of €255,276.”


You can read the full decision of this case here.

Note: this decision was later overturned by the Court of Appeal.

Categories
Employment Law Procedures and Policies Health and Safety Leave and Holidays

How to Manage Sickness Related Absence in Your Workplace, and Reduce Costly and Time Sucking Claims

sickness-policy

Are you an employer?

Have you a member of staff absent from work due to illness?

Do you worry about how to properly manage employees’ absence?

Are you concerned that you’re not sure how to manage sickness related absence?

Many of my clients were in the same boat.

But they’re not worried anymore.

Do you want to know what they’ve done to get some peace of mind in this area?

And to do the same?

Draw up a sick leave absence management policy and procedure

A sick leave absence management policy and procedure is a bit of a mouthful, isn’t it?

Basically, you want to have a policy in place which sets out clearly what procedure is to be adopted when an employee is absent through illness.

This allows you and employees know what exactly is going to happen, and the procedure to be followed.

It’s fair because it will apply to all employees.

And it provides much appreciated clarity for everyone.

This policy should make clear:

  1. whether there is a sick pay scheme
  2. what the notification and certification requirements are when an employee is out sick
  3. that the employee can be required to attend a doctor nominated by the employer for medical assessment.

Medical certs-when, and how frequently, are they required?

You can decide how soon you require a medical certificate from an employee.

What follows is not set in stone, and you can adapt it to suit your circumstances. But, if you do follow these steps, or similar ones, you won’t go too far wrong.

So, on the 1st day of illness, the employee should be required to notify his line manager as soon as possible before scheduled commencement of duty.

He should also be expected to report the general nature of  the illness and expected return to work date.

On the 3rd working day, he must forward a medical cert. to you.

You can choose whether it is the 3rd working day or 4th working day when the cert is required-it’s your decision-but make it clear in your policy document, and ensure that all employees have received a copy of your sick leave absence management policy.

The duration of the medical certs. should also be specified, with weekly certs being submitted initially.

Requiring weekly medical certs for short term absence and accepting monthly certs for long term absences is widespread, and sensible, practice.

It is helpful, also, to define in your policy what is short term absence, what’s long term, and what is unauthorised absence.

Generally, short term absence would be 4 weeks or less, while long term absence would be an absence of more than 4 weeks.

Unauthorised absence is an absence which is not supported by a doctor’s note/cert, or not authorised by management, or not communicated using the correct procedure.

Unauthorised absences would be addressed through your workplace disciplinary procedure.

You do have one, don’t you?

Regular contact should be maintained with the employee to ascertain how he is, and the likely return to work  date.

This is also useful to maintain the employee’s’ connection to the workplace, but should be on a needs basis-for example to ensure the medical certs are being submitted- and not too intrusive or pushy.

When the absence is for 3 or 4 months, it may be time to take a closer look at the absence, and the likelihood of a return to work at all.

An appointment with the company doctor or occupational physician may be arranged at this stage, at the expense of the employer.

It may be time to invite the employee in for a chat, and a discussion including letting the employee know that his employment is under review due to the absence and the question of capacity to do the job will have to be addressed.

She should be able to give an assessment of the likelihood of a return to work, when, and whether there is anything you, as an employer, should be doing to facilitate a return to work.

The doctor or occupational physician may suggest a phased or temporary return to work. This can be monitored and re-assessed after 4-6 weeks.

Before any decision is made, though, about termination of the contract on the grounds of capability, the employee should be invited to make a submission to influence the decision, and fair procedures must be followed.

The medical report should support a decision to terminate by indicating that there is no reasonable prospect of a return to work within a reasonable timeframe.

Unfair Dismissals Act, 1977, section 6(4):

 

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

 

Do remember, though, that the decision to terminate the employment is yours to make, and you cannot hide behind the medical assessment and blame the doctor or try to pin the responsibility on him.

Hopefully, there will be no need to terminate and the employee can return to work.

Return to work follow up

When the employee returns to work, you should:

  1. acknowledge the return to work
  2. request staff to submit a “fit to resume” doctor’s note, by the resumption date, following long term sickness absence. Unless a “fit to resume” note is furnished, employee to be given up to a week to produce one and/or not allowed to return to work without one
  3. try to facilitate a partial return to work where the employee requests it.

In any event, you should interview all employees, regardless of how long they have been out or their illness, prior to their return to work.

Role of occupational health provider/company doctor

Your sickness absence management policy needs to make clear that an employee can be requested to attend your doctor or medical advisor for medical examination and that you, as employer, are entitled to receive details of such medical assessments.

Your occupational health provider/doctor should be able to

  • carry out pre-employment medical assessments;
  • provide advice on health related matters which affect employees’ work;
  • advise about employees fitness to undertake his full range of duties and to make recommendations on measures to assist his return to work;
  • advise on employee’s fitness to undertake modified or alternative duties;
  • advise you about areas of support for health related problems which may be affecting employment.

Quit worrying about sickness related absence

Stop worrying unduly about employees being out sick.

Get a policy drawn up to manage absences, enforce it consistently and fairly, and make sure all employees have been given a copy.

You will reduce your stress, increase your peace of mind, and significantly diminish employment related claims-for stress and unfair dismissal- against you.

Categories
Employment Claims Health and Safety

Bullying and Workplace Stress as a Personal Injury-a Notable High Court Decision in 2014

workplace-stress

I regularly meet employees who complain of being stressed. And who want to make a claim against their employer as a result.

But it’s not quite that straightforward.

Because of the difference between occupational stress and workplace stress.

Workplace stress is actionable. Occupational stress isn’t.

A March, 2014 judgment in the High Court in the case Glynn v Minister for Justice Equality and Law Reform (2014 IEHC 135) is well worth looking at because it deals with workplace stress, bullying, and personal injury claims in the workplace.

The claimant was a civil servant and worked in Gort Garda station in Co. Galway. Her claim was that she suffered stress as a result of pressure placed on her in 2005 to complete monthly accounts for the Garda station.

Prior to this incident there were other incidents-not getting on with a Garda who she felt was constantly checking on her-going back to 1996 and she had taken sick leave in November of that year.

She returned on a 3 day week in 1997.In 2004 she was promoted to the position of Finance Officer.

In May, 2005 she worked on the accounts for 4 days during which she suffered considerable stress.

She then raised with Garda Headquarters her concerns about a cheque for expenses in favour of the Superintendent. She claimed the Superintendent told her he would take her job from her if she didn’t do what he told her.

She then went on sick leave for 6 months and returned when the Superintendent had retired from the station.

In cross-examination the claimant admitted that she had suffered from depression prior to the incidents complained of. She also had failed to contact the Employment Assistance Services of the Department of Justice in 1996 re her bullying allegation.

The defence case was that there was no bullying and the Superintendent had no issues with her, nor was there a problem with the expenses cheque.

The Legal Issues and Principles

The High Court, Justice Kearns, observed:

“…..bullying, workplace stress and occupational stress are all things which, conceptually at least, are quite different from each other, though on occasion they can overlap and coincide. Occupational stress is not actionable given that occupational stress is something which every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying.…”

The Court noted that workplace stress can be actionable if certain criteria are met. However it is different from bullying insofar as it lacks the degree of deliberateness associated with bullying.

“Workplace stress can also be the result of negligence where excessive demands are made of an employee or where complaints about shortcomings in the workplace go unheeded. It lacks however that degree of deliberateness which is the hallmark of bullying”.

The Court said the following question should be asked in relation to the claim of bullying:

“whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress“

It also referred to the legal definition of bullying set out in Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17 of 2002) viz
“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, it is not considered to be bullying.”

The Court noted that this definition required an objective test to decide whether bullying had occurred.

The Court referred to Quigley v Complex Tooling and Moulding Ltd [2009] 1 I.R. 349 and the acceptance by the Supreme Court in that case of the definition of bullying or harassment at work as set out in S.I. No. 17 of 2002 above.

Justice Kearns observed that the relevant legal principles for workplace stress were laid down in Berber v Dunnes Stores [2009] E.L.R. 61 (which accepted the practical propostions set out in the 2002 case Hatton V Sutherland [2002] 2 All E.R.1).

These legal principles are:
1. The ordinary principles of employer’s liability apply.

2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.

5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.

7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.

8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.

9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.”

The Decision

The High Court in this case held that 2 things exercised the plaintiff:

1. a sense of injustice that she, as a civilian employee, was not being paid the same rate as a Garda colleague and

2. the working conditions she had to work in in 1996 (in a portacabin/temporary accommodation).

The Court also observed that there was no acceptable explanation by the plaintiff as to why she did not disclose a prior history of depression and accepted that the Superintendent’s evidence was reliable and credible.

Justice Kearns stated that he could not see that anything in the behaviour of the Garda colleague or Superintendent constituted bullying or harassment.

Furthermore

“the events upon which the plaintiff relies to mount her claim turn on the events of a few short days in May, 2005 a time span more identifiable with a once-off or single incident rather than the kind of ‘repetitive’ and ‘inappropriate’ conduct which constitutes the wrong of workplace bullying or harassment“.

The court concluded that the plaintiff had not made a case for bullying or workplace stress causing or contributing to foreseeable injury or damage. She had no complaints of workplace stress for the eight years between 1997 and 2005.

Justice Kearns went further and said

“Even if mistaken on these issues I would also be of the view that the plaintiff failed to demonstrate that her stress was attributable to the matters she complained of in this case. She had a prior history of stress and depression which was not disclosed until it was uncovered through the discovery process. I believe any subsequent stresses suffered by the plaintiff were attributable both to life events (including the tragic death of her nephew and the death of her father) and, in 2005, to occupational stress only”.

You can read the full High Court decision here.