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.

Categories
Health and Safety

The Safety Health and Welfare Act 2005-What It Means for Employers

health-safety-workplace-ireland

It’s easy to get health and safety wrong, isn’t it?

Especially if you are an employer.

The employer’s duties for work safety in the workplace are very stringent and the primary source of these work safety obligations are contained in Safety Health &Welfare at Work Act 2005.

The general duties of the employer are set out in sections 8 to 12 and fall under the following headings:

  • General duties of employers
  • Information for employees
  • Instruction, training and supervision of employees
  • Emergencies and serious imminent dangers
  • General duties of employers to people other than their employees.

The following are the main points of that act:

Workplace safety-Employer’s duties

Section 8

• Imposes a general duty of care upon all employers to ensure the health and safety of all employees.

• This extends to ensuring: safe systems of work, preventing improper behaviour amongst fellow employees.

• In addition the employer’s duties include taking steps to prevent risk from all articles, substances, noise, vibration and radiation.

• Equipment must additionally be maintained in full working order.

• In complying with health and safety legislation no employee must incur personal expense.

Section 9

• In recognising the evolving multi-cultural profile of the Irish work force, this section specifies that all health and safety notices must be displayed in a manner and language as is suitable to the requirements of the resident workforce.

Section 10

• Training and instruction where provided must be in a manner which is suitable to the requirements of those at issue and without financial penalty incurring to the individuals concerned.

• Such training should be provided where appropriate upon recruitment, where a change of task is required and in instances where new work systems are put in place.

Section 11

• All employers have a duty, to those other than employees, to ensure that that they are not exposed to risk.

Section 13

• In accordance with the provisions of this section, employees are required to take all reasonable steps to ensure their own health and safety as regards both acts and omissions in the course of their duties.

• This extends to ensuring that they are not intoxicated whilst at work and to submit to an examination by a registered practitioner when this is suspected.

• Additionally there is an expectation that employees should make use of safety equipment when provided.

• Employees should also report any deviations from work practice, defects in equipment or machinery and refrain from misrepresenting the degree of training in the safe work systems previously gained.

Section 19

• Employers shall identify all relevant hazards and accordingly draw up and be in possession of a risk assessment profile.

• This should be subsequently reviewed in circumstances whereby there has been significant change to provisions or where there is alternate reason to believe that the risk assessment is no longer valid.

Section 20

• A safety statement should be in the possession of the employer. This statement should identify all hazards, assess the associated risks and identify the safety equipment to be provided.

• A contingency plan must be drafted to be deployed in the event of an emergency including the duties of specified individuals.

Section 23

• Places an onus on the employee to report either directly to their employer or to a specified medical practitioner the onset of any illness which may materially affect the performance of their duties eg heavy machinery operator diagnosed with epilepsy.

Section 25

• Employees may from time to time select from amongst their co-workers a delegate to act as a safety representative, more that one may be selected with the consent of the relevant employer.

• This individual may thereafter: inspect the work place, investigate accidents, and with notice to the employer investigate complaints from co-workers.

• As of right this individual is entitled, without loss of remuneration, to take a leave of absence to receive training pursuant to their duties or to discharge existing functions.

Section 27

• An employer may not penalise, that is suspend, demote, reprimand etc for acting in compliance with statute, making a complaint based on health and safety non compliance or giving evidence in proceedings.

Section 62

• Under the provisions of the Act, inspectors may be appointed to oversee compliance. Such inspectors will be furnished with a certificate of inspection as suitable form of identification.

Section 64

• Inspectors so appointed will be endowed with the power to enter any workplace any time to inquire as to statutory compliance with the 2005 Act.

• This power is manifested in an ability to demand access to relevant records and where necessary take original copies.

Section 66

• In circumstances where the inspector deems it appropriate, an improvement notice may be served.

• This notice will state the failure of compliance at issue, state the relevant statutory provision that this fails to adhere to, direct the individual to remedy this situation.

• Once the matters referred to have been remedied, the employer shall alert the inspector who shall on being satisfied issue a certificate of compliance.

Section 67

• Where an inspector is of the opinion that at any place of work there is occurring or is likely to occur any activity which involves or is likely to involve a risk of serious personal injury to any person, the inspector may serve a written notice (in this Act referred to as a “prohibition notice”) on the person who has or who may reasonably be presumed to have control over the activity concerned.

Section 68

• Where a prohibition notice has been served under section 67 and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.

Section 69

• Where an improvement notice or a prohibition notice is served, the person to whom it is addressed shall on receipt of the notice:

(a) bring the notice to the attention of any person whose work is affected by the notice, and
(b) display the notice or a copy of the notice in a prominent place at or near any place of work, article or substance affected by the notice.

Conclusion

It is clear from the above that the employer’s duties to provide work safety in the workplace are pretty demanding.

Criminal penalties can be imposed for serious breaches and this has occurred in the Irish courts. Any employer not taking his duties to provide work safety in the workplace for his employees is taking an unjustifiable risk, both for himself and his employees.

Categories
Health and Safety

Health and Safety Obligations for Irish Employers (Including Non Physical Injuries-Bullying and Stress)

health-safety-irish-workplace

Let’s be honest.

Health and safety in the workplace in Ireland places very onerous obligations on employers.

Health and safety law in the workplace derives from

  1. Common law and
  2. Statutory regulation.

Common law

Under common law there is a general duty of care owed by employers to their employees. Regardless of any piece of legislation such as the Safety, Health and Welfare at Work Act, 2005, employers have always had a common law duty to provide a safe place of work/premises.

Broadly the employers’ obligations can be summarised under 5 categories including

  • Providing safe systems of work
  • Providing a safe place of work
  • Plant and machinery that is safe and fit for purpose
  • Training and supervision
  • A duty of care in the selection of fellow employees.

However the difficulty for employees was that they had to establish negligence by the employer and that the employee had suffered loss as a result.

The element of contributory negligence by the employee was also a problem for the employee to bring a successful claim although the Civil Liability Act, 1961 provided that contributory negligence would only lead to a reduction in damages awarded and not a complete defence for the employer.

Nowadays with the evolution of the modern duty of care owed by an employer to an employee can be summarised as follows: an employer owes a duty of care to his employees and this duty is a personal one which cannot be discharged by delegation to another apparently competent person.

Case law has held that the discharge of this duty by the employer is if he does what a reasonable or prudent employer would have done in the circumstances.

The Safety, Health and Welfare at Work Act, 2005

This act sets out the broad framework of obligations and responsibilities imposed on employers and employees in the workplace in Ireland. The Act obliges employers to do everything reasonably practicable to ensure the safety, welfare and health of his employees.

NOTE: “reasonably practicable” in the context of the Act

“means that an employer has exercised all due care by putting in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety and health…at the place of work..”

These obligations also impose responsibilities in relation to bullying and harassment in the workplace, information to be provided to employees about health and safety, and supervision, training, and instruction to employees. Employers also have obligations, not just to employees, but to other self-employed people who may be carrying out work at the employer’s premises or place of work.

Here are five essential steps to ensure that you as an employer fulfil your obligations:

  1. Identify the hazards in the workplace
  2. Assess the risks
  3. Choose control measures
  4. Write your safety statement
  5. Record and review your safety statement on a regular basis.

Sections 8 to 12 contain the general duties of employers, both to employees and to other persons. These include the general duties, the obligation to provide information to employees, the obligation to provide instruction, training and supervision, plans and procedures for emergencies and imminent dangers, and general duties to persons who are not employees.

Employees’ Duties

The duties of the employee are set out in section 13 of the act.

These include ensuring that they comply with health and safety policies and procedures, avoiding the use of intoxicants in the workplace, not engaging in horseplay or improper conduct and co-operating with the employer.

Sections 8 to 17 of the Safety, Health and Welfare at Work Act, 2005 deal with duties of the employer, employee and other persons in control of places of work. And all of these sections refer to what is “reasonably practicable” which for the first time is defined in the Act, section 2(6):

(6) For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.

It is a matter for each employer to decide what is “reasonable practicable”. However section 81 provides that the onus of proof will be on the employer:

81.—In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

Safety Statements

Section 20 of the Act deals with safety statements. Sections 18-24 deal with protective and preventative measures generally.

For an employer to implement the necessary safety measures section 20 of the Safety, Health and Welfare at Work Act, 2005 obliges the employer to prepare a safety statement which is based on an assessment and identification of the hazards in the workplace.

It must also set out the preventative and protective measures taken to protect employees by setting out the policies and procedures that will be followed and provide for the election of a safety representative in the workplace and emphasises consultation with the workers.

This safety statement must be available for inspection at the place of work and one of the key requirements is that this statement is brought to the attention of all employees and be understandable by them.

Failure to comply with the requirements of this safety statement provision is a criminal offence but there is an exemption for employers of 3 or fewer employees in a limited number of industries (e.g. construction) where the Health and Safety Authority have published a Code of Practice.

However the likelihood is that you will need a safety statement to be compliant with the Safety, Health and Welfare Act, 2005.

Safety, Health and Welfare at Work (GeneralApplication) Regulations 2007-Statutory Instrument 299/2007  covers all of the requirements on employers and employees arising from the 2005 Act. These regulations cover

  1. Employers obligations
  2. Employees duties
  3. Safety statement and risk assessment
  4. Health and safety leave
  5. Protective equipment and measures
  6. Reporting accidents
  7. Young people and health and safety
  8. Victimisation
  9. Bullying
  10. Harassment
  11. Violence in the workplace
  12. The role of the Health and Safety Authority

It is noteworthy from the above list that bullying falls under the heading of health and safety in the workplace and the employer has an obligation to prevent bullying and stress in the place of work. Not to do so can lead to successful claims for constructive dismissal and breach of contract.

Consultation

Sections 25-31 deal with safety representatives, the need for consultation in the workplace, and the non penalisaiton of an employee who acts in good faith in the interests of health and safety.

Section 22 deals with the obligation of the employer to carry out health surveillance appropriate to the place of work.

Section 25 deals with the powers and obligations of safety representatives.

Section 28 of the Act allows a Rights Commissioner to award compensation to an employee for the employer’s breach of health and safety legislation. Section 27 protects the employee from penalisation.

Sections 57 and 58 allow the minister to make regulations relating to any matter referred to in the 2005 Act. These regulations deal with bullying and stress in the workplace, manual handling, repetitive strain injury, passive smoking, use of work equipment, personal protective equipment, display screen equipment, first aid, and more.

Maternity Protection

The Maternity Protection Acts 1994 to 2004 provide that employers shall carry out risk assessments taking particular account of risks to new and expectant mothers. Learn more about maternity leave and protection here.

The Health and Safety Authority

The Health and Safety Authority (HSA) is deal with in Part 5 of the Act and has responsibility for enforcement of the legislation and is given significant powers including powers of entry, on the spot fines and prosecution of offences.

Part 7 of the act sets out the offences and penalties which can be imposed.

The sanctions provided under the Safety, Health and Welfare at Work Act, 2005 are primarily criminal.

Stress, Occupational Stress and Non Physical Injuries

Bullying and Stress in the Workplace

An employer has a general common law duty of care to prevent bullying and stress in the workplace. The safety statement, as required by the Safety, Health and Welfare at Work Act, 2005, also requires that the employer carry out a risk assessment regarding bullying in the workplace.

Occupational stress

The HSA (Health Safety Authority) defines workplace stress as “when the demands of the job and the working environment on a person exceeds their capacity to meet them” and identifies a range of situations which can cause stress in the workplace including poor communication, poor working relationships, ill-defined work roles, and others.

Non physical injuries in the workplace

However there is a difficulty here for employers as there is no well accepted definition of stress as a non-physical injury and claims for non-physical injuries in the workplace tend to be decided on the basis of decisions in case law.

Cases like Kelly v HennessyMcHugh v Minister for DefenceCurran v Cadbury ltd., McGrath v Trintech, and Maher v Jabil Global Services Limited [2005] IEHC are instructive in this regard.

(note: in May, 2014 the High Court awarded €255,000 to a special needs assistant in a primary school in a bullying complaint against the school-read about the case here)

The test set out in the decision of the Maher v Jabil Global Services Limited [2005] case was later adopted by the Supreme Court in Berber v Dunnes Stores ltd. [2009].

The Stress Test

Accordingly the test to be used to identify negligence by the employer for non physical injury in the workplace asks these 4 questions:

  1. Has the employee suffered an injury, not just occupational stress?
  2. If he/she has, is the workplace to blame?
  3. If so, was the harm suffered by the employee reasonably foreseeable by the employer?
  4. If so, did the employer fall below the standard of the reasonable and prudent employer n addressing the needs of this employee?

It is noteworthy that when an employer is aware that a particular employee has a higher susceptibility to stress the employer actually has a higher duty of care to that employee. The Safety, Health and Welfare at Work Act, 2005 also defines a personal injury in the workplace as

“(a) any injury, disease, disability, exceptional illness or any impairment of physical or mental condition..”

So bullying policies and grievance procedures are an essential for employers to show they have done everything reasonably practicable to prevent bullying and stress in the workplace and should provide for the relieving of an employee of his/her duties and the obtaining of advice from health professionals.

Bullying

The “Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying” defines bullying at work 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’

(NOTE: bullying at work is dealt with under Health and Safety legislation; harassment is dealt with under Equality legislation.)

The motivation or ignorance of the bully is immaterial.

The code provides a non exhaustive list describing patterns of behaviour which are examples of bullying. These include

  • undermining behaviour
  • exclusion with negative consequences
  • physical abuse
  • verbal abuse
  • aggression
  • excessive monitoring of work
  • humiliation
  • and more.

It also importantly describes the type of behaviour which does not fall within the definition of bullying, particularly one off incidents.

The legal remedies for redress if you are a victim of bullying behaviour, workplace stress, or harassment are extensive and are set out here.

The Code also distinguishes bullying and harassment with the latter being covered by equality legislation and the 9 grounds of discrimination and membership of one of the 9 groups by the victim.

It also points out that reasonable and essential discipline in the workplace is not bullying eg an employee whose performance is continuously signaled as being below target is not a victim of bullying.

The code sets out guidelines for developing bullying prevention policies in the workplace and sets out the risk assessment procedures to be used in developing anti-bullying policies.

And most importantly for employers and HR or legal advisors the code sets out detailed guidance in relation to carrying out investigations of bullying in the workplace which must follow natural justice and fair procedures principles.

Importantly the Code states that if the health and safety risk assessment flags up bullying as a potential problem in the workplace then the bullying prevention policy must be included in the Safety Statement of the business.

And it is difficult to envisage a situation where bullying would not be identified as a risk given its broad definition in terms of behaviour which would qualify.

As stated above the absence of an anti-bullying policy in the workplace will make it difficult for an employer to successfully defend a claim of bullying.

Grievance procedures are also a safeguard against successful claims as the employer needs to be able to show that the employee had access to management and management needs to be able to show that it thoroughly investigated the grievance/complaint.

Here is an interesting recent (2014) decision in a bullying case involving a special needs assistant and a primary school in Kildare.

Also, in March 2014, the High Court in Catherine Glynn v The Minister for Justice and others revisited the legal principles involving bullying in the workplace and commented as follows:

In the present case and in so far as any case of creating or causing workplace stress was pursued, the relevant legal principles were laid down in Berber v. Dunnes Stores [2009] E.L.R. 61, a decision which adopted the ‘practical propositions’ derived by Hale L.J. from case law and set out by her in Hatton v. Sutherland [2002] 2 All E.R. 1 as follows:-

“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.”

It must now be considered whether the plaintiff has made out a case under either the heading of workplace bullying or actionable workplace stress as defined in Hatton’s case.

You can read the full case here on the Court’s website.