Ireland: Recent case law on an employer’s duty of care in PTSD/psychological injury cases
27 November 2018
Cases from the courts continue to emphasise the duty of care on employers to take reasonable steps to protect their employees from the reasonably foreseeable harm which may arise as a result of treatment by other employees, even where such behaviour might not amount to bullying in the workplace.
The Court of Appeal recently delivered an interesting decision in this area. The case is McCarthy v ISS Ireland Ltd (13 August 2018), in which an appeal of the dismissal of the plaintiff’s personal injuries claim was allowed and the matter remitted back to the High Court. The Court of Appeal upheld the plaintiff’s argument that the High Court had erred in deciding her case on the principles involved in bullying and harassment cases, but that the case should be decided on the principles of vicarious liability and the employer’s negligence in failing to provide a safe place of work.
The case involved five separate incidents over the course of a 20-month period in which the plaintiff (a cleaning supervisor) had been threatened by members of her team, or they had behaved in a manner towards her which was threatening and abusive. She resigned, but was diagnosed with post-traumatic stress disorder. The first incident occurred in May 2009 and she reported this to ISS, but claimed that no action was taken to prevent it re-occurring. In fact, she claimed that by virtue of the fact that her employer had not taken sufficient action, following all of her complaints, they allowed a situation to arise whereby her team felt able to behave in a manner towards her which was abusive, threatening and aggressive, without fear of consequence. She claimed that the atmosphere of fear and intimidation towards her led cumulatively to her suffering such fear, stress and anxiety that she was forced to leave her employment. She alleged that her employer was in breach of its duty of care to her to provide a safe place of work, as a result of which she suffered personal injury.
The plaintiff also conceded that the incidents were not sufficiently connected (they involved separate staff members) so that there was no claim that they were acting in a manner which was co-ordinated. Contrast this with Glynn v Minister for Justice Equality and Law Reform (High Court, 21 March 2014) in which members of Garda management were found to have engaged in a campaign of bullying and harassment against the plaintiff.
The McCarthy case was dismissed in the High Court on the basis that the plaintiff had not made out a claim of negligence against her employer. In addition to the fact that the incidents were not sufficiently connected so as to come within the definition of bullying, the trial judge said that these temporal gaps between the incidents could not have been anticipated by the employer – so were unforeseeable. In her appeal, the plaintiff submitted that the trial judge had erred in characterising her claim as one of work place bullying and instead alleged that the employer was vicariously liable for their employees' tortious acts, and was negligent in failing to provide a safe place of work.
The Court of Appeal dismissed the appeal for vicarious liability on the basis that the incidents complained of (admittedly assaults) were not behaviour committed in the course of employment even though they happened while the employees were at work. The Court said that it was stretching the concept of vicarious liability beyond its intended limit if an employer was to be found vicariously liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work.
However, the Court stated that all employers owe a duty of care to their employees while they are at work, both as a matter of common law and by way of regulation. The common law duty of care includes the provision of a safe place of work. The Court said that it was reasonable to expect an employer of a supervisor to anticipate that conflict between the supervisor and her team might occur, and to have procedures in place to minimise such conflict and prevent any recurrence so far as is reasonably possible.
An investigatory report commissioned by the employer (but carried out by a third party) was very critical of the employer and pointed to 12 failures on its part (including issues around bullying, but more importantly, around the breach of the employer’s duty to provide a safe place of work) to which the Court of Appeal had regard.
The Court of Appeal ultimately stated that where the plaintiff made complaints about incidents of hostility, aggression and abuse by those whom she was supervising, the employer owed a duty of care to take some reasonable steps to address what occurred with a view to minimising the chances of recurrence. The duty of care does not extend to ensure that no recurrence ever takes place, which would be too high a standard to be expected, but they were obliged to take reasonable steps to protect her from a recurrence where it was evidenced to them that these were a cause of significant stress, anxiety and fear to the plaintiff. On that basis, it was found that the employer was liable in negligence for the injuries, loss and damage sustained as a result of that negligence.
This case follows on from the Hurley v An Post case (High Court, 16 March 2018), which is very similar, but one where there was a one-off incident between the plaintiff and her colleague. After she reported the incident, she was effectively “sent to Coventry” by her colleagues as a result of the action taken against the other employee.
The plaintiff was a 53-year-old mother of two who had commenced working in a sorting office in Cork in 2003. In July 2006, her colleague became very aggressive towards her, to the point where he came so close to her that she thought he was going to head-butt her. She was very frightened and having reported the incident, was on sick leave for three weeks. Her colleague was suspended and, when she returned to work, she was ostracised and isolated by her colleagues, who she believed blamed her for the dismissal of her colleague. She reported the situation to management who did not take any action, but advised her that it would likely “die down”.
Prior to the incident, the plaintiff had not exhibited any significant long-term physical or mental health symptoms. Evidence before the High Court was that as a result of the accident she suffered from post-traumatic stress disorder, and numerous “chronic persistent” physical symptoms, such as muscle spasms in her neck, which were driven by stress. She had a number of absences as a result of these symptoms and was dismissed by An Post in 2011.
The High Court was satisfied that the conduct of the plaintiff’s co-workers following her return to work “was, on the application of an objective test, highly inappropriate repeated behaviour which must reasonably be regarded as undermining her right to dignity at work” and was the very essence of the bullying and harassment contemplated in the legal definition set out in the Code of Practice appended to the Industrial Relations Act 1990 (approved in the case of Quigley v Complex Tooling). The plaintiff had been “subjected to debilitating and humiliating treatment on a daily basis of a petty and mean kind”, and the Court accepted that this behaviour which was allowed to continue unchecked by her employer had a serious effect on her “well-being, her mental health and ultimately her ability to return to her employment”.
Finding that An Post was liable for the bullying and harassment of which it was aware and failed to address in any meaningful way, the Court also held that it was in breach of its common law duty of care to the plaintiff as an employee and under section 8 of the Safety Health and Welfare at Work Act 2005 and exposed her to damage and injury to her health (“moderate form of PTSD”) which she suffered as a result. An award in the amount of €161,133.00 was made, including €50k for pain and suffering.
Implications for employers
Taken together, these two cases are an important reminder for all employers with regard to the duty of care owed to employees. Employers can be held liable for an employee's bullying of a colleague, which may result in mental health problems, and take urgent action to rectify the situation. Even where the behaviour complained of may not amount to bullying, an employer will likely be found to be liable on the basis of a breach of the duty of care to provide a safe place of work and failure to take all reasonable steps to protect an employee where it is reasonably foreseeable that when carrying out their work, there is a risk to which they may be exposed.
Employers should ensure that they have appropriate policies and procedures in place to deal with issues of this nature (even though, as per the McCarthy decision above, they may not strictly come within the definition of bullying). These policies should be kept up to date, and be widely known throughout the organisation, so that employees are confident that their employer will deal with issues appropriately and in a timely manner. Regular training in this area should also be given to the entire workforce.