The Avoidable Fears and Panic of Small Employers-3 Illustrative Cases

Are you an employer? Have you been stressed and anxious about an employment issue recently?

I have met a number of employers in the last year or so and I had a great deal of sympathy for them.

Let me explain.

It’s very easy for you as an employer to make mistakes in relation to your employment law obligations. One of the obvious reasons for this is the massive body of employment law legislation on the statute books.

If you throw in EU directives and regulations and statutory instruments and recommended workplace policies/procedures and common law and decided cases and the constitution you would be forgiven for not knowing whether you were coming or going when an employee makes allegations or claims against you.

I have recently encountered a number of cases where employers eventually contacted me for advice and had they contacted a solicitor earlier in the day they could have saved themselves a lot of money, anxiety, and stress.

Referring a complaint to the Workplace Relations Commission

The first case involved a small family owned business who were, like most small business owners, flat out doing what they did: making stuff and selling it. Out of the blue they received communication from a trade union on behalf of a long standing employee. The letter set out a number of grievances going back many years and demanded a meeting with the trade union official and their member employee.

The employer, acting in good faith and trying to ‘do the right thing’, agreed and a number of meetings were arranged. These meetings were only moderately successful and involved the employee complaining about many issues, mostly trivial matters frankly, going back many years.

A number of meetings took place involving management of the company and the trade union official and employee. These meetings were time consuming and necessitated the preparation and issuing of minutes and the focusing of valuable management time.

Ultimately the meetings failed to resolve the issues and the employee, with the assistance of the trade union, submitted a claim to the Workplace Relations Commission. Once the employer received the formal letter from the WRC advising of the complaint he immediately panicked and embarked on another round of meetings to try to resolve the issues.

Schedules had to be arranged to facilitate all concerned and ultimately proved to be a waste of time as the employee was still not satisfied.

This whole episode caused great anxiety and stress to the owners of this small business who were anxious from the outset to deal with the problem fairly and in accordance with the law.

What the employer could have done

Firstly, the employer should have obtained professional advice.

If he did he would almost certainly have been told that the issues raised by the employee were grievances or complaints but not breaches of the employee’s rights. Therefore nothing unlawful had been done and there was no cause for panic.

Secondly, the employer could have given the employee a copy of the staff handbook and directed his attention to the grievance procedure in the handbook and told him he was obliged to use the internal grievance procedure to try to ventilate his complaints and have them dealt with.

He would also have been told that the outcome of the grievance procedure could be appealed if the employee was still not happy but ultimately the decision of that appeal was final.

Thirdly, if the employer sought professional advice early he should have been told that the complaint that was submitted to the WRC was a ‘trade dispute’ under the Industrial Relations Act, 1969 and the employer could simply refuse to have it investigated by the WRC by ticking a box on the letter he had received from the WRC.

A lot of stress and anxiety, and expenditure of management resources, would have been avoided, not to mention money saved.

Alleged breach of contract

The second case involved an employee going to a solicitor and making a wide number of allegations about non payment of wages for extra hours allegedly worked, holiday entitlements, public holidays, failure to pay minimum wage, a stress related injury as a consequence of the workplace, and so on.

The threatened legal action contained in the solicitor’s letter on behalf of the employee covered all of the above issues going back many years and demanded a significant payment to ‘settle the matter and all claims arising from the employment’.

It was a real ‘mixum gatherum’ of a demand letter and caused the recipient small business owner a great deal of anxiety and stress. She was an elderly lady who had employed this employee for over thirty years and in addition to the stress and worry at receiving such a letter was also personally disappointed on a human level for she felt she had been very fair with this employee for three decades and was taken aback to see the relationship go downhill.

The small business owner, an elderly lady who has retired from the business which was now run by her son, was incredibly upset by the whole affair.

The employee who was making this claim was at an age when many people would consider retiring and it appeared that this claim may have been one motivated by a desire to get recognition for the years of service, one way or the other.

On the face of it the demand by the employee for an eye watering amount of money was intensely worrying. However, when the issues and claims were stripped down to their essence the situation was not nearly as bad as first appeared.

Firstly, I explained that even though the employee was claiming a stress/psychological injury as a result of the situation in the workplace it is very difficult to successfully succeed with such a claim. I told her son that the employee would need to prove a number of things:

  1. That he had suffered an identifiable psychiatric/psychological injury
  2. That the injury suffered was as a result of the negligence of the employer
  3. That the injury was forseeable and the employer had failed to act as a reasonable employer would.

In other words if the employee had only suffered ‘ordinary stress’ and not a recognised psychiatric injury he would be unlikely to succeed with a personal injury claim. Courts recognised that work is generally a cause of stress. It is not play or entertainment or recreation.

Moreover, bringing a personal injury claim would require expensive medical reports and take quite a while to get to court for hearing and incur significant legal costs with an uncertain outcome thus leaving the employee with a touch decision to make.

In short when the rubber hit the road this ‘stress’ claim may not even get off the ground.

With regard to the other claims concerning holiday pay, public holiday entitlements, or non payment of wages, for example, these would need to be submitted to the WRC (Workplace Relations Commission) within 6 months of the alleged breach of the relevant act.

Thus, the WRC would not be able to deal with the entire value of his claim, assuming there was merit in it, as he would be ‘out of time’ for the bulk of what he was claiming.

This six months rule would not apply if he sued for breach of contract in the Civil courts and he could go back 6 years. However, this would involve legal proceedings for breach of contract in the civil Courts and with the amounts of money involved it may not actually be worth the risk in the end.

Yes, if he won he would almost certainly get his legal costs awarded by the Court, however if the claim was a relatively small one would it be worth it? Would he have the evidence to support all aspects of his claim? Would the employer have a good defence and/or better records? And he would be statute barred in respect of the parts of his claim which were over 6 years old.

Therefore when this particular claim, which commenced with a demand for an eye watering sum of money from the employer, was stripped down to its bare essentials it was not nearly as worrying or stressful for the employer.

Nor an attractive money pot for the employee.

Unfair dismissal

Another employer contacted me in a lather of sweat about an unfair dismissal claim that is coming up. She checked online and discovered that the potential award in an unfair dismissal claim is up to 2 years’ salary.

However, the legislation allows the award of financial loss to a maximum of 2 years’ salary and this level of award is extremely rare.

In her particular case, however, the employee had got a new job within 1 month of the dismissal. Therefore the maximum financial exposure for this claim was 1 month’s salary.

If she calculated how much this would amount to, and the fact that she could put up some sort of defence to the claim when the hearing was held, she would have seen that it was not something that should cause a great deal of anxiety.

And she could always try to settle it in advance of the hearing and avoid the time and cost involved in attending a WRC hearing, especially if she wanted to have legal representation. I would have had to advise her, however, that the cost of defending the case using a solicitor might actually exceed the potential award to the employee.

So, if she wanted to defend it she could consider doing it herself and taking her chances.

Normally I would not recommend this approach but if an employer has a potential exposure for a small award that is not likely to exceed the cost of legal representation then I would advise her to this effect and let her decide.

Conclusion

You will see from these three examples that massive fear and worry can be caused to decent employers if they do not obtain sound professional advice from the outset.

Yes, employers must afford employment rights to their employees and treat them decently, with respect, and lawfully. And if they don’t they will be brought to account. Quite right, too.

But unnecessary fear or stress to employers caused by bad or no advice can be avoided if they seek professional advice early in the day from someone who is familiar with the ins and outs of employment law in Ireland.

Otherwise they will experience worry and anxiety that may be wildly out of proportion to their potential exposure in the claim(s) they are threatened with.






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When It May Be Critically Important to Make a Grievance or Complaint in the Workplace

workplace grievance

Mary suffered in silence in her job for a long time-nearly 12 months, in fact. She was brave, and hard working, and stoic and just got on with it.

Her boss was a headcase, a bully with no regard for the dignity or feelings of those around him.

He wanted to get the job done, he wanted results, he wanted them now, and if you wanted to give him some cock and bull story or excuses, well ‘you know where the door is’.

At first, she joked with her husband and friends that she now worked in ‘Dante’s Inferno’. She called him ‘Lucifer’. The joke soon wore thin, however.

And eventually, Mary-or more accurately, her health-just broke down.

The first sign was her mood-it became irritable at home and she was much more inclined to snap at her husband and the kids. She was impatient and tired all the time and devoid of energy or interest in stuff outside work.

Then it insidiously crept into her bedroom and she had trouble sleeping.

At night her mind would race as she lay in bed thinking about what she had done in work that day, what she had and hadn’t achieved, what was on the calendar tomorrow, had she forgotten or overlooked anything, how long can she endure more of this crap, should she just quit and walk away.

She had worked hard for this career, did well in college, did well in her previous jobs, always performed well and had good performance reviews, and did well in this one until he-Lucifer- arrived.

At first, she thought it was just a personality or ‘style’ issue, a clash of approaches/cultures, and she was determined she would get used to him, and his moods. She would adapt. She was strong, resilient, tough. She hadn’t failed before.

Breakdown

One day in November, however, she just couldn’t face it. She was literally frozen with fear and apprehension and went to her doctor. Her GP listened patiently and sympathetically for 45 minutes while Mary poured her heart out. He told her he had no doubt- she was suffering from severe stress and anxiety as a consequence of the issues in the workplace and she needed a break immediately. He also referred her to a psychiatrist.

Six months later Mary came to see me. She was still off work and her condition had only improved very marginally. She could not see any way under the sun she could return to that job under that man and wanted to enquire about her legal options.

She told me the kids wanted their mammy back, and she could not see this happening if she returned to the same workplace. This time she felt she had to walk away. It simply wasn’t worth it.

She’d get another job. But had she any legal redress, she enquired.

The Legal Options

This type of situation is not uncommon and the most obvious options would be one or all of the following:

  1. A claim for constructive dismissal
  2. A personal injury claim
  3. A breach of contract claim

She had one major problem, however, no matter which way she approached the problem: she never complained. Not formally, not informally-she just ‘got on with it’.

To succeed with any of these claims she will have a difficult time overcoming the one fatal flaw in her case: the employer will claim ‘we never knew there was a problem, for she never complained’.

And this is a big problem for her.

No doubt, the employer should know what is going on in the workplace, and is obliged to know. But when the accusation is thrown at the employer the employer will argue that he acted reasonably and did what any employer would do in circumstances where no complaint was made: nothing.

Mary may claim that she did not get a copy of the staff handbook, or did not know how to make a complaint, or did not know what procedure to use, or did not know what the grievance procedure involved.

But this will be a problem. Since we were kids we know how to make complaint. And that complaint, at a minimum, would have helped Mary’s situation immensely.

It would have been better again if she had made a formal written complaint in accordance with the grievance or dignity at work procedure in the workplace. And if her complaint was not dealt with properly she could have followed up.

But she needed to complain. And then exhausted the internal procedures open to her. Because the problems she faces are as follows:

Constructive Dismissal

Generally, to win a claim for constructive dismissal, you must show you acted reasonably before quitting your job. This involves

  1. Telling the employer that you have an issue or problem
  2. Giving him the chance to rectify the situation
  3. Exhaust the internal procedure
  4. After this you can leave the job, bring a case for constructive dismissal, and claim that you acted reasonably by virtue of taking all the steps outlined here.

Otherwise, you face the problem of the employer saying, ‘he/she never told me there was a problem-we would have fixed it if we knew’.

Personal Injury Claim

To win a personal injury claim against your employer you need to show:

  1. You have suffered a personal injury-in Mary’s case, a psychological or psychiatric injury
  2. The employer was negligent

To prove the employer was negligent you will need to show that he did not act reasonably. This is easier to prove when you have made a complaint to the employer and he does nothing. Then you can claim he did not act reasonably, or at all.

But if you don’t make a complaint? It will be hard to prove the employer failed to act reasonably. And harder, therefore, to prove negligence and win your case.

Conclusion

I am not telling you that you should be making complaints or raising grievances in the workplace at the drop of a hat.

You are required to have a certain degree of robustness in the normal day to day activities in the workplace. There will be a certain element of rough and tumble in the normal interactions between human beings.

But if you at some point in the future want to bring a claim or legal proceedings against your employer, and you wish to prove you had no choice but to leave the job or suffered a personal injury and he is liable, you will need to show some evidence of difficulties in the workplace and your attempts to resolve the problem.

Suffering in silence is not advisable from a health or legal perspective. If you do there is a good chance that, as the old Turkish proverb goes, the dogs will bark but the caravan will move on.

What Melissa’s Story Can Teach Us About Bullying in the Workplace

workplace bullying ireland

When Melissa¹ came to see me she was very upset and was anxious to pursue her employer if that was possible.

Except she didn’t say ‘pursue her employer’.

She wanted to teach him a costly lesson and ‘put manners on him’. She wanted to take him into a metaphorical darkened room and give him a good ‘seeing to’.

To help me visualise what he looked like she told me to just picture Boycie, the second hand car dealer, in ‘Only Fools and Horses’.

Anyway, once she was seated and settled she told me her story.

Melissa told me that she was being bullied in work, nothing she did appeared to be good enough, she had enough and now wanted to see about taking legal action against the bully (her manager) or her employer, or both.

I asked her to tell me her story, the gory details. What she told me over the next 45 minutes was her version of ‘being bullied’.

Firstly, she told me she had been a loyal, hardworking member of staff for over 5 years and had never received a raise.

She also told me that recently she had looked for a day off because she had nobody to mind her child when the school was closed for a day. And her manager, the alleged bully, had made such a song and dance of it that you would think she was asking him to give her the rest of the month off, or something.

And then she told me about the nitpicking way her manager had of going on about her work.

Melissa was a member of the administrative staff and had to do a bit of debt collection, too, to chase up slow debtors. Her manager was forever pointing out mistakes or typographical errors she made but she made the point that she only made these mistakes because she was trying so hard and was under pressure.

Now he is criticising her for her phone manner in speaking with customers, now it’s the odd mistake in the letters she is sending out, now it is her time-keeping.

And then, he has mentioned the possibility of putting her on a PIP-a performance improvement plan-if her performance does not improve.

She had reached the end of the line with him and her employer and now wanted to bring a claim or legal proceedings to ensure the bullying stopped and ensure ‘others did not have to go through what I have to endure’.

And if she was compensated for the distress caused to her by her manager and/or employer, well all the better. She was finding it hard enough to make ends meet as it is.

I keep a box of tissues in the back office and had already placed them on my desk in front of her before she started telling me her story. Now, I had to give her my opinion and advise her about the prospects for any claim she brought against her employer. I feared the tissues would be now used more liberally for the news I had to give her was not what she wanted to hear.

Firstly, I had to tell her that not being given a pay rise for 5 years or thereabouts was very unlikely to be considered bullying behaviour. I explained that bullying behaviour is defined 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.” (Health and Safety Authority)

Supreme Court’s view on bullying

The Supreme Court, in Quigley v Complex Tooling and Moulding Limited, held that bullying must be ‘repeated, inappropriate and undermining of the dignity of the employee at work’.

The Supreme Court, in 2017 in the Ruffley v Board of Management of St. Anne’s school case, held that the behaviour complained of must be repeated, a pattern of behaviour and the question of undermining the dignity of the employee is critical; such behaviours must be “behaviour which is inappropriate at a human level” and Mr. Justice Charleton said, “conduct is be judged according to the standard of human beings, and not of angels.”

I tried to impress upon Melissa that the conduct she complained of was unlikely to reach the required standard as confirmed by the Supreme Court. In fact, the manager making a song and dance of a request for a day off, while frustrating and annoying for her, is a one off event and cannot constitute bullying, unless it is part of a pattern of repeated behaviour.

I moved on to the question of mistakes in her work and the concern of her manager with her performance, particularly mistakes in letters going out or poor treatment of customers on the phone.

I had to tell her that any employer is entitled to expect a certain standard in the workplace and if the employee does not meet this standard then a Performance Improvement Plan is always a lawful possibility.

But that this was not, of itself, bullying behaviour.

Remedies for bullying

I then had to give Melissa more bad news in relation to her ‘case’.

And that was that even if she managed to surmount the high bar set by the Supreme Court in ‘Ruffley’ to actually prove truly bullying behaviour the options open to her by way of remedy also brought their own problems.

One remedy open to her, for example, was to bring a claim to the WRC under the Industrial Relations act 1969 claiming that there was a trade dispute between her and her employer insofar as the employer had failed to prevent bullying in the workplace. However, if the employer objected to such an investigation by the WRC, as it was referred under the Industrial Relations legislation, the WRC could not deal with it.

If this happened she could go to the Labour Court, but any recommendation in her favour from the Labour Court would be legally unenforceable-the employer could simply ignore it and the only way to enforce it would be through industrial relations action such as a picket.

Constructive Dismissal

A second remedy open to her would be to resign and bring a claim for constructive dismissal. I had to advise her that her claim had little chance of success as she had not exhausted the internal procedures yet.

Personal Injury Claim

A third remedy would be to bring a personal injuries claim. The difficulty with this is that she would have to prove she had suffered an identifiable psychiatric injury as the Supreme Court held,

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

I was also obliged to tell her that this type of case was a difficult case to win, and would be slow and costly due to legal costs and expert medical reports required, including a consultant psychiatric report which would be relied upon to proved she had suffered an identifiable psychiatric injury.

Conclusion

Bullying is an easy allegation to throw around, and I hear it all the time, quite frankly. But from a legal perspective bullying requires a particularly high standard of proof and, according to the Supreme Court, “conduct is be judged according to the standard of human beings, and not of angels.”

Melissa was exceptionally disappointed but I would be doing her a grave disservice if I did not tell her what I made of her situation honestly and plainly. Last I heard Melissa had left that job and is happy in her new role which, fortunately, is closer to her home.

¹Please note: “Melissa” is not a real name, although the facts of the story above are true.

If you are unsure of your rights you may be interested in arranging a consultation to find out where you stand from a legal perspective. You can learn more about arranging a consultation here.

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.

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.