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
- Common law and
- Statutory regulation.
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:
- Identify the hazards in the workplace
- Assess the risks
- Choose control measures
- Write your safety statement
- 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.
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.
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
- Employers obligations
- Employees duties
- Safety statement and risk assessment
- Health and safety leave
- Protective equipment and measures
- Reporting accidents
- Young people and health and safety
- Violence in the workplace
- 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.
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.
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.
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 Hennessy, McHugh v Minister for Defence, Curran v Cadbury ltd., McGrath v Trintech, and Maher v Jabil Global Services Limited  IEHC are instructive in this regard.
The test set out in the decision of the Maher v Jabil Global Services Limited  case was later adopted by the Supreme Court in Berber v Dunnes Stores ltd. .
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:
- Has the employee suffered an injury, not just occupational stress?
- If he/she has, is the workplace to blame?
- If so, was the harm suffered by the employee reasonably foreseeable by the employer?
- 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.
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
- excessive monitoring of work
- and more.
It also importantly describes the type of behaviour which does not fall within the definition of bullying, particularly one off incidents.
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  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  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.