Recent case on employer’s duty to protect employees
The Court of Appeal recently ruled a case involving the relatively unusual idea of “upwards bullying”. In McCarthy v ISS Ireland Ltd and HSE, the High Court had previously decided that the threshold required for legal bullying had not been met on the facts. In an interesting decision, the Court of Appeal found that, while the threshold for legal bullying had not been met, the employer had breached its duty of care to the complainant. The Court of Appeal ruled that what was at issue was not workplace bullying, but negligence on the part of the employer.
Writing in The Parchment magazine, Ailbhe Dennehy provides a useful overview of the facts of the case. The plaintiff reported five separate incidents of staff acting in an, “aggressive, threatening and abusive manner”, causing her, “severe stress and anxiety, humiliation, pain, and suffering”. Further, the plaintiff alleged that, “no particular action was taken to prevent a recurrence”.
In the first instance, the High Court approached this case as one of workplace bullying. Three markers of bullying were identified, namely: repetition, duration, and indications of escalation of the activity. The Court noted, “temporal gaps between each incident”, and that each of the five incidents involved a different employee.
The High Court dismissed the case, noting that, “ordinary human life is full of upsets large and small… which don’t necessarily give rise to legal liability”. The trial Judge felt that the incidents complained of would not “in the ordinary course cause a person to suffer as the plaintiff claims to have suffered”.
On appeal, the plaintiff argued that she had never presented her case as one of workplace bullying, and that the trial Judge had erred in characterising it as such. Rather, the plaintiff was presenting her case as one of negligence on two grounds:
- The alleged individual tortious acts by employees committed in the course of their employment which caused her injury and for which the employer was vicariously liable; and
- The alleged negligence by the employer by failing to provide a safe place of work by taking no reasonable or effective action to prevent recurrence of the behaviour and thereby “negligently permitting” an atmosphere to exist in the workplace whereby staff felt free to “speak and act abusively” towards the plaintiff “without fear of sanction”.
The Court stated that the concept of vicarious liability would be stretched “beyond its limits if an employer was to be found liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress”.
The plaintiff had authority over the employees in question, which could “bring her into conflict with those under her supervision”. In the Court’s view, it was reasonable for her employer to have a “particular duty of care” towards the plaintiff and to “anticipate that such conflict might occur”. This is in line with an employer’s general duty to “take all reasonable steps to protect an employee”. The Court ruled that, in the present case, “nothing was done to protect the plaintiff”.
The Court of Appeal found the employer liable in negligence for the injuries, loss and damages attributable to its negligence by:
- Not having policies and procedures in place to deal with issues of this nature; and
- Failing to provide the plaintiff with a safe place of work.
The Court of Appeal remitted the case to the High Court for a determination of the issues of causation and damages.
The idea of liability for negligence in the workplace is something that all Irish employers should now be aware of. Prompt and effective action should be taken when on notice of any employee behaviour so as to avoid any accusation that the employer is allowing such behaviour to continue in the workplace.
For any further information on employment matters please contact Niall MacCarthy on 012960666.
