Psychological Injury
Cases
Quigley -v- Complex Tooling & Moulding Ltd [2008] IESC 44
SC Fennelly J.
“1. This appeal concerns an award of damages for psychiatric injury (reactive depression) found to have been caused by bullying or harassment in the workplace. In a judgment of 9th March 2005, Lavan J in the High Court found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” The learned judge, following a separate judgment on damages, awarded to the plaintiff the sum of €75,000 for general damages together with the sum of €773.94 special damages.
2. The defendant appeals on two grounds: firstly, that the evidence, though uncontradicted, did not bear out the plaintiffs complaints of bullying; secondly, that there was no sufficient evidence of a causal link between the bullying which the High Court judge found that the plaintiff had been subjected to and the depression his doctor found him to have suffered. The defendant also appeals against the quantum.
3. In spite of the comparative novelty of the cause of action, the Court has not been asked to decide any principles of law. The parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.
The facts
4. The Plaintiff commenced employment with a predecessor company of the defendant at its premises at Kells, County Meath, in or about August 1977. The defendant terminated his employment by dismissing him on or about the 18th October 1999. The defendant, which is no longer in business, carried on the business of assembly of computer parts.
…..
8. The plaintiff claimed that he was being over-scrutinised by Mr S. A flavour of this is given by the following quotation from the plaintiff’s evidence:
“Well, when I would be working away doing my job on assembly with 5 or 6 other employees doing the same job Mr S would come and position himself on some platforms behind me and would be there for half an hour, 45 minutes, daily, watching me.”
9. He became aware of this when colleagues told him of it. Then he was conscious of it. Mr S would be six or seven feet behind him. He would “take up the same stance and stand there with his arms folded just watching me.” This made the plaintiff feel very uncomfortable. The behaviour continued two or three times a week even after the plaintiff had complained through his shop steward. The plaintiff described the attitude and behaviour of Mr S in the following answers:
“His attitude was that I was not capable of doing the assembly the way they wanted it done. He would tell the charge hand in question that any of my work was to be looked at, you know, over scrutinise and check this that and the other. I was so nervous with him watching me that I would make mistakes, because I was aware he is watching me…”
“If I was doing silk screening for instance he would say “I do not know why you are doing that, that is no good. You can see that is no good, there is a scratch on the surface” whatever a screw missing or something. Another day when I would leave …… things out and not do them he’d say, “look you could have done that and we can get that rectified. Go back on that” you know. So no matter what I was doing it just was not right for him”
“……when I would go to get a drink of water he would be standing at my section ……and he would be tapping the door as much as to say well there is nobody working here……I would leave down my drink of water and come over thinking he wanted to speak to me and when I’d come over he would walk off.”
10. The evidence of the plaintiff showed the behaviour of Mr S to combine persistent watching, constant niggling criticism, failure to respond or communicate and inconsistency. As an example of the last, there was evidence of Mr S telling the plaintiff to send a product out to a customer, though the plaintiff though it was defective and told him so, and Mr S blaming the plaintiff when the customer returned the defective goods. Furthermore, the plaintiff’s evidence was amply supported by the evidence several other employees. It appears that the plaintiff was singled out for this treatment.
The defendant’s argument on the harassment issue
11. Mr Lyndon McCann, Senior Counsel, accepted, on behalf of the defendant, that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of “workplace bullying” at paragraph 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 an accurate statement of the employer’s obligation for the purposes of this case. That definition is:
“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.”
12. Mr McCann submitted, and I would accept, that bullying must be:
· Repeated;
· Inappropriate;
· Undermining of the dignity of the employee at work.
…..
The causation issue
17. 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 a identifiable psychiatric injury. The learned trial judge found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” He awarded damages to the plaintiff for psychiatric injury, in the form of depression. On the question of causation, he stated:
“The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in the treatment of him by the servants of the defendant during his employment with the defendant.”
18. He also said that he accepted the evidence of Dr Coffey, the plaintiff’s general practitioner, who had given evidence on his behalf. On the other hand the learned trial judge did not refer to any of the detail of either the plaintiff’s evidence or that of Dr Coffey or her medical reports.
19. Mr McCann submits that the evidence simply does not bear out the contention that the depression from which the plaintiff suffered was causally linked to the harassment or workplace bullying.
20. At this point it is appropriate to recall that the plaintiff was dismissed from his employment in October 1999. He commenced proceedings against the defendant pursuant to the provisions of the Unfair Dismissals Acts. He was successful in those proceedings before the Rights Commissioner and, on appeal by the defendant, before the Employment Appeals Tribunal, whose determination was dated 7th February 2003. But the defendant had ceased trading in July 2002. The effect of the order of the Employment Appeals Tribunal was that the plaintiff was entitled to payment up until that date and a redundancy payment arising on the closure of the factory.
21. It is agreed that the plaintiff is not entitled in these proceedings to recover damages for any personal injuries suffered as a consequence of his dismissal from his employment.
22. Dr Coffey’s evidence must be read with her medical two reports. The plaintiff first attended Dr Coffey on 8th January 2001. He told her that he had been dismissed from his job in October 1999 and that he had been suffering from depression for six months before his visit to her. He said that he had won his case for unfair dismissal (obviously referring to the decision of the Rights Commissioner) but that the company were appealing the decision and the uncertainty of waiting for a date was adding to his anxiety. Dr Coffey stated, in her report (date 11th June 2001 but related to the visit of 8th January of that year) that the plaintiff “had become increasingly anxious about his impending case” and that “his symptoms of depression had intensified.” She concluded that the plaintiff had “suffered from a moderately severe depressive episode arising directly from his industrial relations problems.”
23. In cross-examination, Dr Coffey agreed that the plaintiff’s complaints related “to the fact that he had lost his job.” She referred to “the delay in the appeal date, the anxiety that surrounded that delay.” She had not recorded any complaint that the plaintiff had had been bullied or harassed at work and agreed that his difficulty was not attributed to such an origin.
24. Dr Coffey prepared a second report dated 24th March 2003 for the purpose of the litigation. She then mentioned that the plaintiff had a pending case against his employer “re harassment,” but did not otherwise refer to that issue. That report makes no mention of the cause of the plaintiff’s depression.
25. The picture presented by the medical evidence then is consistent only with the plaintiff’s depression having been caused by his dismissal and subsequent unfair dismissal proceedings and there is no medical evidence of a link with the harassment.
26. This is consistent with the plaintiff’s own evidence. He said: “…after all these appeals, had been heard…I realised that I wasn’t going to get my job back then it hit me……and then I went to the doctor.” He said that it was then that it “affected [him] mentally.”
27. Although the plaintiff elsewhere in his evidence described Mr S’s behaviour as having shocked him and feeling very uncomfortable, pressurised and useless as an employee, he did not say that he had suffered symptoms of depression.
28. It is clear both from Dr Coffey’s evidence and that of the plaintiff that he did not consider himself to have been affected mentally until after his dismissal. He did not go to a doctor at all until some fourteen months after that event. He then said that his depression had started six months previously. The doctor gave no evidence linking that condition to the harassment or workplace bullying.
29. Consequently, the plaintiff has not discharged the burden of proving that his depression was caused by his treatment during his employment. It follows that, although the plaintiff’s complaints of bullying or harassment have been upheld, and his employer was in beach of its duty of care to him, the appeal should be allowed and the plaintiff’s claim dismissed.”
Johnson v. Unisys Limited
[2001] UKHL 13; [2001] 2 All ER 801; [2001] 2 WLR 1076
HOUSE OF LORDS LORD HOFFMANN
“My Lords,
31. Mr Johnson has spent his working life in the computer industry. In 1971, at the age of 23, he started work for Unisys Ltd, a multinational software service company. In 1987 he was made redundant but in 1990 Unisys re-employed him. In January 1994, however, he was summarily dismissed for some alleged irregularity. The company paid him a month’s salary in lieu of notice. He complained to an industrial tribunal of unfair dismissal and the tribunal upheld his claim. It found that the company had not given him a fair opportunity to defend himself and had not complied with its disciplinary procedure. On 26 July 1995 it ordered Unisys to pay him £11,691.88 compensation.
32. On 11 August 1997 Mr Johnson commenced an action in the Milton Keynes County Court against Unisys for damages at common law. He claimed alternatively for breach of contract or negligence. In his re-amended particulars of claim, he alleged that his dismissal was in breach of various implied terms of his contract of employment. The main one was that the employer would not without reasonable cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between itself and the employee. The existence of this implied term in a contract of employment has recently been affirmed by the House of Lords in Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. It is commonly called the implied term of trust and confidence. He also pleaded various other implied terms; for example, that the company would not, without reasonable cause, do anything which would injure his physical or mental health, harm his professional development and so forth. But the alleged breach of all these terms lies in the fact that he was dismissed without a fair hearing and in breach of the company’s disciplinary procedure.
33. Mr Johnson says that in consequence of the manner and the fact of his dismissal, he suffered a mental breakdown. He became depressed, attempted suicide and started to drink heavily. In 1994 he spent five months in a mental hospital and since then has occasionally had to be re-admitted. His family life has suffered and despite over 100 applications, he has been unable to find work. He is 52 and considers it unlikely that he will find remunerated work again. He says that severe damage of this kind was reasonably foreseeable by Unisys because during the period before his redundancy in 1987 it was known to persons whose knowledge should be attributed to the company that he was under stress and at risk of suffering psychological injury. The alternative claim in tort is based upon the allegation that Unisys owed him a duty of care because it ought reasonably to have foreseen that such injury was likely to result from dismissing him in the way it did.
34. Unisys applied to Judge Ansell in the Milton Keynes County Court to strike out the particulars of claim on the ground that the alleged facts disclosed no cause of action at common law. The judge did so. Mr Johnson appealed to the Court of Appeal (Lord Woolf MR, Hutchison and Tuckey LJJ) which affirmed the judge’s decision. Mr Johnson now appeals to your Lordships’ House.
35. My Lords, the first question is whether the implied term of trust and confidence upon which Mr Johnson relies, and about which in a general way there is no real dispute, or any of the other implied terms, applies to a dismissal. At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees. European law has made a substantial contribution. And the common law has adapted itself to the new attitudes, proceeding sometimes by analogy with statutory rights.
36. The contribution of the common law to the employment revolution has been by the evolution of implied terms in the contract of employment. The most far reaching is the implied term of trust and confidence. But there have been others. For example, in W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516, Morison J (sitting in the Employment Appeal Tribunal) said that it was an implied term of the contract of employment that an employer would reasonably and promptly afford employees an opportunity to obtain redress of grievances. He inferred such a term from what is now section 3 of the Employment Rights Act 1996, which requires that an employee be provided with a written statement of the particulars of his employment, including a note of how he may apply if he has any grievances. So statute and common law have proceeded hand in hand.
37. The problem lies in extending or adapting any of these implied terms to dismissal. There are two reasons why dismissal presents special problems. The first is that any terms which the courts imply into a contract must be consistent with the express terms. Implied terms may supplement the express terms of the contract but cannot contradict them. Only Parliament may actually override what the parties have agreed. The second reason is that judges, in developing the law, must have regard to the policies expressed by Parliament in legislation. Employment law requires a balancing of the interests of employers and employees, with proper regard not only to the individual dignity and worth of the employees but also to the general economic interest. Subject to observance of fundamental human rights, the point at which this balance should be struck is a matter for democratic decision. The development of the common law by the judges plays a subsidiary role. Their traditional function is to adapt and modernise the common law. But such developments must be consistent with legislative policy as expressed in statutes. The courts may proceed in harmony with Parliament but there should be no discord.
38. My Lords, I shall consider first the problem posed by the express terms of the contract. In developing the implied term of trust and confidence and other similar terms applicable to the continuing employment relationship, the courts were advancing across open country. No express provision that BCCI would be entitled to conduct a fraudulent business, or that the employer in W A Goold (Pearmak) Ltd v McConnell would have no grievance procedure, stood in their way. But the employer’s right to dismiss the employee is strongly defended by the terms of the contract. In the present case, Mr Johnson’s contract provided:
“If you decide to leave UNISYS you are required to give the company four weeks notice; equally, the company may terminate your employment on four weeks notice… In the event of gross misconduct, the company may terminate your employment without notice.”
39. The effect of such a provision at common law was stated with great clarity by McLachlin J of the Supreme Court of Canada in Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 39:
“The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal.… A ‘wrongful dismissal’ action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given.”
40. Likewise in Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1581 Lord Reid said:
“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”
41. The action for wrongful dismissal could therefore yield no more than the salary which should have been paid during the contractual period of notice. In the present case Mr Johnson’s letter of engagement referred to Terms and Conditions of Employment contained in the company’s Employee Handbook, which stipulated expressly that “The company reserves the right to make payment in lieu of notice”. Unisys exercised that right.
42. My Lords, in the face of this express provision that Unisys was entitled to terminate Mr Johnson’s employment on four weeks notice without any reason, I think it is very difficult to imply a term that the company should not do so except for some good cause and after giving him a reasonable opportunity to demonstrate that no such cause existed.
43. On the other hand, I do not say that there is nothing which, consistently with such an express term, judicial creativity could do to provide a remedy in a case like this. In Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 44-48, McLachlin J (in a minority judgment) said that the courts could imply an obligation to exercise the power of dismissal in good faith. That did not mean that the employer could not dismiss without cause. The contract entitled him to do so. But in so doing, he should be honest with the employee and refrain from untruthful, unfair or insensitive conduct. He should recognise that an employee losing his or her job was exceptionally vulnerable and behave accordingly. For breach of this implied obligation, McLachlin J would have awarded the employee, who had been dismissed in brutal circumstances, damages for mental distress and loss of reputation and prestige.
44. My Lords, such an approach would in this country have to circumvent or overcome the obstacle of Addis v Gramophone Co Ltd [1909] AC 488, in which it was decided that an employee cannot recover damages for injured feelings, mental distress or damage to his reputation, arising out of the manner of his dismissal. Speaking for myself, I think that, if this task was one which I felt called upon to perform, I would be able to do so. In Mahmud v Bank of Credit and Commerce International SA [1998] AC 20, 51 Lord Steyn said that the true ratio of Addis’s case was the damages were recoverable only for loss caused by a breach of contract, not for loss caused by the manner of its breach. As McLachlin J said in the passage I have quoted, the only loss caused by a wrongful dismissal flows from a failure to give proper notice or make payment in lieu. Therefore, if wrongful dismissal is the only cause of action, nothing can be recovered for mental distress or damage to reputation. On the other hand, if such damage is loss flowing from a breach of another implied term of the contract, Addis’s case does not stand in the way. That is why in Mahmud’s case itself, damages were recoverable for financial loss flowing from damage to reputation caused by a breach of the implied term of trust and confidence.
45. In this case, Mr Johnson says likewise that his psychiatric injury is a consequence of a breach of the implied term of trust and confidence, which required Unisys to treat him fairly in the procedures for dismissal. He says that implied term now fills the gap which Lord Shaw of Dunfermline perceived and regretted in Addis’s case (at pp 504-505) by creating a breach of contract additional to the dismissal itself.
46. It may be a matter of words, but I rather doubt whether the term of trust and confidence should be pressed so far. In the way it has always been formulated, it is concerned with preserving the continuing relationship which should subsist between employer and employee. So it does not seem altogether appropriate for use in connection with the way that relationship is terminated. If one is looking for an implied term, I think a more elegant solution is McLachlin J’s implication of a separate term that the power of dismissal will be exercised fairly and in good faith. But the result would be the same as that for which Mr Johnson contends by invoking the implied term of trust and confidence. As I have said, I think it would be possible to reach such a conclusion without contradicting the express term that the employer is entitled to dismiss without cause.
47. I must however make it clear that, although in my opinion it would be jurisprudentially possible to imply a term which gave a remedy in this case, I do not think that even if the courts were free of legislative constraint (a point to which I shall return in a moment) it would necessarily be wise to do so. It is not simply an incremental step from the duty of trust and confidence implied in Mahmud vBank of Credit and Commerce International SA [1998] AC 20. The close association between the acts alleged to be in breach of the implied term and the irremovable and lawful fact of dismissal give rise to special problems. So, in Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, the majority rejected an implied duty to exercise the power of dismissal in good faith. Iacobucci J said, at p 28, that such a step was better left to the legislature. It would be “overly intrusive and inconsistent with established principles of employment law”.
48. Some of the potential problems can be illustrated by the facts of this case, in which Mr Johnson claims some £400,000 damages for the financial consequences of psychiatric damage. This form of damage notoriously gives rise at the best of times to extremely difficult questions of causation. But the difficulties are made greater when the expert witnesses are required to perform the task of distinguishing between the psychiatric consequences of the fact of dismissal (for which no damages are recoverable) and the unfair circumstances in which the dismissal took place, which constituted a breach of the implied term. The agreed statement of facts records that for the purposes of this appeal against a strike-out it is accepted that Mr Johnson’s psychiatric illness was caused by “the circumstances and the fact” of his dismissal. At a trial, however, it would be necessary to decide what was caused by what.
49. Another difficulty is the open-ended nature of liability. Mr Johnson’s case is that Unisys had knowledge of his psychological fragility by reason of facts lodged in the corporate memory in 1985-87 and therefore should have foreseen when he was engaged that a failure to comply with proper disciplinary procedures on dismissal might result in injury which deprived him of the ability ever to work again. On general common law principles it seems to me that if the necessary term is implied and these facts are made out, the claim should succeed. It may be that such liability would be grossly disproportionate to the employer’s degree of fault. It may be likely to inhibit the future engagement of psychologically fragile personnel. But the common law decides cases according to principle and cannot impose arbitrary limitations on liability because of the circumstances of the particular case. Only statute can lay down limiting rules based upon policy rather than principle. In this connection it is interesting to notice that although the majority in Wallace v United Grain Growers Ltd were unwilling to accept an implied term as to the manner of dismissal, they treated it as relevant to the period of notice which should reasonably have been given. McLachlin J said that this was illogical and so perhaps it is. But one can understand a desire to place some limit upon the employer’s potential liability under this head.
50. It follows, my Lords, that if there was no relevant legislation in this area, I would regard the question of whether judges should develop the law by implying a suitable term into the contract of employment as finely balanced. But now I must consider the statutory background against which your Lordships are invited to create such a cause of action.
51. In 1968 the Royal Commission on Trade Unions and Employers’ Associations under Lord Donovan recommended a statutory system of remedies for unfair dismissal. The recommendation was accepted by the government and given effect in the Industrial Relations Act 1971. Unfair dismissal was a wholly new statutory concept with new statutory remedies. Exclusive jurisdiction to hear complaints and give remedies was conferred upon the newly created National Industrial Relations Court. Although the 1971 Act was repealed by the Trade Union and Labour Relations Act 1974, the unfair dismissal provisions were re-enacted and, as subsequently amended, are consolidated in Part X of the Employment Rights Act 1996. The jurisdiction is now exercised by employment tribunals and forms part of the fabric of Enlish employment law.
52. Section 94(1) of the 1996 Act provides that “an employee has the right not to be unfairly dismissed by his employer”. The Act contains elaborate provisions dealing with what counts as dismissal and with the concept of unfairness, which may relate to the substantive reason for dismissal or (as in this case) the procedure adopted. Over the past 30 years, the appellate courts have developed a substantial body of case law on these matters. Certain classes of employees are altogether excluded from the protection of the Act. Section 108 excludes those who have not had one year’s continuous service and section 109 excludes those over normal retiring age or 65. The tribunal may make an order for reinstatement, re-engagement or compensation. The latter consists of a basic award and a compensatory award. The basic award is related to the period of service but, by section 122(2), may be reduced by such amount as the tribunal considers just and equitable on account of the complainant’s conduct before dismissal. A compensatory award under section 123(1) shall be, subject to qualifications:
“such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”
53. By subsection (6), the tribunal may reduce the compensatory award by such amount as it considers just and equitable to take into account a finding that the complainant himself caused or contributed to his dismissal. These were the provisions applied by the tribunal in the present case to reduce Mr Johnson’s award by 25%. Finally, section 124(1) limits a compensatory award to £50,000. This figure was substituted by section 34(4) of the Employment Relations Act 1999 with effect from 25 October 1999. Previously the maximum had been £12,000 and the applicable figure at the time of the award to Mr Johnson was £11,000.
54. My Lords, this statutory system for dealing with unfair dismissals was set up by Parliament to deal with the recognised deficiencies of the law as it stood at the time of Malloch v Aberdeen Corporation [1971] 1 WLR 1581. The remedy adopted by Parliament was not to build upon the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith, leaving the courts to give a remedy on general principles of contractual damages. Instead, it set up an entirely new system outside the ordinary courts, with tribunals staffed by a majority of lay members, applying new statutory concepts and offering statutory remedies. Many of the new rules, such as the exclusion of certain classes of employees and the limit on the amount of the compensatory award, were not based upon any principle which it would have been open to the courts to apply. They were based upon policy and represented an attempt to balance fairness to employees against the general economic interests of the community. And I should imagine that Parliament also had in mind the practical difficulties I have mentioned about causation and proportionality which would arise if the remedy was unlimited. So Parliament adopted the practical solution of giving the tribunals a very broad jurisdiction to award what they considered just and equitable but subject to a limit on the amount.
55. In my opinion, all the matters of which Mr Johnson complains in these proceedings were within the jurisdiction of the industrial tribunal. His most substantial complaint is of financial loss flowing from his psychiatric injury which he says was a consequence of the unfair manner of his dismissal. Such loss is a consequence of the dismissal which may form the subject-matter of a compensatory award. The only doubtful question is whether it would have been open to the tribunal to include a sum by way of compensation for his distress, damage to family life and similar matters. As the award, even reduced by 25%, exceeded the statutory maximum and had to be reduced to £11,000, the point would have been academic. But perhaps I may be allowed a comment all the same. I know that in the early days of the National Industrial Relations Court it was laid down that only financial loss could be compensated: see Norton Tool Co Ltd v Tewson [1973] ICR 45; Wellman Alloys Ltd vRussell [1973] ICR 616. It was said that the word “loss” can only mean financial loss. But I think that is too narrow a construction. The emphasis is upon the tribunal awarding such compensation as it thinks just and equitable. So I see no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life.
56. Part X of the Employment Rights Act 1996 therefore gives a remedy for exactly the conduct of which Mr Johnson complains. But Parliament had restricted that remedy to a maximum of £11,000, whereas Mr Johnson wants to claim a good deal more. The question is whether the courts should develop the common law to give a parallel remedy which is not subject to any such limit.
57. My Lords, I do not think that it is a proper exercise of the judicial function of the House to take such a step. Judge Ansell, to whose unreserved judgment I would pay respectful tribute, went in my opinion to the heart of the matter when he said:
“there is not one hint in the authorities that the…tens of thousands of people that appear before the tribunals can have, as it were, a possible second bite in common law and I ask myself, if this is the situation, why on earth do we have this special statutory framework? What is the point of it if it can be circumvented in this way? …. it would mean that effectively the statutory limit on compensation for unfair dismissal would disappear.”
58. I can see no answer to these questions. For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament that there should be such a remedy but that it should be limited in application and extent.
59. The same reason is in my opinion fatal to the claim based upon a duty of care. It is of course true that a duty of care can exist independently of the contractual relationship. But the grounds upon which I think it would be wrong to impose an implied contractual duty would make it equally wrong to achieve the same result by the imposition of a duty of care.
60. There is one further point. During the argument there was some discussion of whether the provisions for disciplinary hearings were express terms of Mr Johnson’s contract and what the consequences would be if they were. No such express terms were pleaded and Mr Faulks QC, who appeared for Mr Johnson, was not enthusiastic about doing so. Nevertheless, it may be useful to examine the matter in a little more detail.
61. Section 1(1) of the 1996 Act provides that upon commencing employment, an employee shall be provided with “a written statement of particulars of employment”. This includes, but is not limited to, the “terms and conditions” of employment concerning various matters, including “the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment” (section 1(4)(e)). Section 3(1) then provides that a statement under section 1 shall include a “note…specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee”
62. Consistently with these provisions, Mr Johnson was written a letter of engagement which stated his salary and summarised the terms and conditions of his employment, including the notice period. Apart from the statement that in the event of gross misconduct, the company could terminate his employment without notice, it made no reference to disciplinary matters. It was however accompanied by the Employee Handbook, which the letter of engagement said “outlines all the terms and conditions of employment”. This was divided into various sections, the first being headed “Employment terms and conditions”. These made no reference to the disciplinary procedure, which appeared in a subsequent section under the heading “Other procedures”. There one could find the various stages of the disciplinary procedure: formal verbal warning, written warning, final written warning, culminating in dismissal, as well as the separate procedure for summary dismissal in cases of serious misconduct.
63. So did the disciplinary procedures constitute express terms of the contract of employment? Perhaps for some purposes they did. But the Employee Handbook has to be construed against the relevant background and the background which fairly looms over the disciplinary procedure is Part X of the 1996 Act. The whole disciplinary procedure is designed to ensure that an employee is not unfairly dismissed. So the question is whether the provisions about disciplinary procedure which (to use a neutral phrase) applied to Mr Johnson’s employment were intended to operate within the scope of the law of unfair dismissal or whether they were intended also to be actionable at common law, giving rise to claims for damages in the ordinary courts.
64. Section 199(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 gives ACAS power to issue “Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations”. By section 207, a failure to comply with any provision of a Code is not in itself actionable but in any proceedings before an industrial tribunal “any provision of the Code which appears…relevant to any question arising in the proceedings shall be taken into account in determining that question.” In 1977 ACAS issued a Code of Practice entitled “Disciplinary Practice and Procedures in Employment”. It explained why it was important to have disciplinary rules and procedures which were in writing and readily available to management and employees. It said in paragraph 4:
“The importance of disciplinary rules and procedures has also been recognised by the law relating to dismissals, since the grounds for dismissal and the way in which the dismissal has been handled can be challenged before an industrial tribunal.”
65. In paragraph 10 it listed what disciplinary procedures should include. The Unisys procedures have clearly been framed with regard to the Code of Practice.
66. My Lords, given this background to the disciplinary procedures, I find it impossible to believe that Parliament, when it provided in section 3(1) of the 1996 Act that the statement of particulars of employment was to contain a note of any applicable disciplinary rules, or the parties themselves, intended that the inclusion of those rules should give rise to a common law action in damages which would create the means of circumventing the restrictions and limits which Parliament had imposed on compensation for unfair dismissal. The whole of the reasoning which led me to the conclusion that the courts should not imply a term which has this result also in my opinion supports the view that the disciplinary procedures do not do so either. It is I suppose possible that they may have contractual effect in determining whether the employer can dismiss summarily in the sense of not having to give four weeks’ notice or payment in lieu. But I do not think that they can have been intended to qualify the employer’s common law power to dismiss without cause on giving such notice, or to create contractual duties which are independently actionable.
67. I would dismiss the appeal.
LORD MILLETT
My Lords,
68. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann, with which I am in full agreement. I add some words of my own in order to explain why I consider that the present is not an appropriate occasion in which to revisit the decision of your Lordships’ House in Addis v Gramophone Co Ltd [1909] AC 488.
69. That case established the principle that damages are awarded for breach of contract and not for the manner of the breach; accordingly nothing can be recovered for mental distress, anxiety, injury to feelings or (so it is said) damage to reputation. The case was concerned with a contract of employment and the actual decision was that damages for wrongful dismissal are limited to compensation for the financial loss arising from the premature determination of the contract where proper notice of dismissal has not been given: they cannot include compensation for the employee’s injured feelings because he has been dismissed in an offensive and humiliating manner. The principle, however, is not limited to contracts of employment but is of general application in the law of contract.
70. The supposed rule that damages are not recoverable for financial loss arising from injury to reputation (or in a case of wrongful dismissal for making it more difficult for the plaintiff to find employment) is not easy to defend and may no longer be the law after Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. My noble and learned friend Lord Steyn has argued powerfully that it never was the law, being derived from a faulty headnote which misrepresented the true ratio decidendi of the case. Subject to this caveat, however, the general rule would seem to be a sound one, at least in relation to ordinary commercial contracts entered into by both parties with a view of profit. In such cases non-pecuniary loss such as mental suffering consequent on breach is not within the contemplation of the parties and is accordingly too remote. (The ordinary feelings of anxiety, frustration and disappointment caused by any breach of contract are also excluded, but seemingly for the opposite reason: they are so commonly a consequence of a breach of contract that the parties must be regarded not only as having foreseen it but as having agreed to take the risk of its occurrence: see Treitel, The Law of Contract 10th ed, p 923. Contracts which are not purely commercial but which have as their object the provision of enjoyment, comfort, peace of mind or other non-pecuniary personal or family benefits (as in Jarvis v Swans Tours Ltd [1973] QB 233 and similar cases) are usually treated as exceptions to the general rule, though in truth they would seem to fall outside its rationale. Such injury is not only within the contemplation of the parties but is the direct result of the breach itself and not the manner of the breach. Indeed the avoidance of just such non-pecuniary injury can be said to be a principal object of the contract.
71. In Addis’s case the House of Lords treated a contract of employment as an ordinary commercial contract terminable at will by either party provided only that sufficient notice was given in accordance with the terms of the contract. This was the classical approach to such contracts which the House of Lords was content to confirm more than half a century later. In Ridge v Baldwin [1964] AC 40, 65 Lord Reid observed that an employer can terminate the contract of employment at any time and for any reason or for none. It follows that the question whether damages are recoverable does not depend on whether the employer had a good reason for dismissing the employee, or had heard him in his own defence, or had acted fairly towards him: it depends on whether the dismissal was in breach of contract. In Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1581 Lord Reid restated the position:
“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”
72. The common law, which is premised on party autonomy, treated the employer and the employee as free and equal parties to the contract of employment. Each had the right, granted by the contract itself, to bring the contract to an end in accordance with its terms. But by 1971 there was a widespread feeling, shared by both sides of industry, that the legal position was unsatisfactory. In reality there was no comparison between the consequences for an employer if the employee terminated his employment and the consequences for an employee if he was dismissed. Many people build their lives round their jobs and plan their future in the expectation that they will continue. For many workers dismissal is a disaster. In 1964 the Government announced that it would discuss with representatives of employers and trade unions the provision of procedures to give employees effective safeguards against arbitrary dismissal. In 1968 the Royal Commission on Trade Unions and Employers’ Associations under the Chairmanship of Lord Donovan reported that it was urgently necessary for employees to be given better protection against unfair dismissal and recommended the establishment of statutory machinery to achieve this.
73. The recommendations of the Royal Commission were given effect by the Industrial Relations Act 1971. This left the common law and the contract of employment itself unaffected. It did not import implied terms into the contract. Instead it created a new statutory right not to be unfairly dismissed, enforceable in the newly established National Industrial Relations Court. The 1971 Act was replaced by the Employment Protection Act 1975 and its provisions as amended are now contained in the Employment Rights Act 1996. The National Industrial Relations Court was short lived and the jurisdiction in respect of unfair dismissal has for many years been exercised by industrial tribunals (now known as employment tribunals). These consist of a legally qualified chairman sitting with two lay members, one being a representative of the trade unions and the other of employers.
74. For the first time the 1971 Act enabled an employee to challenge his employer’s conduct in exercising his legal rights on the ground that it was unreasonable. The Act contained elaborate provisions which defined the concept and scope of unfair dismissal and provided for compensation to be awarded or reinstatement or re-engagement to be ordered. It set an upper limit to the amount of compensation which could be awarded, which has since been increased from time to time, and allowed the tribunal to reduce the amount of an award if it considered that the employee had caused or contributed to his own dismissal. It provided for an upper age limit and a qualifying period of employment (which has since been reduced but not abrogated) thereby excluding certain categories of employees from its scope altogether.
75. During the past 30 years an extensive jurisprudence has been developed in relation to unfair dismissal. Employers have responded to the existence of the statutory right, as the Royal Commission intended that they should, by introducing elaborate procedures of complaint and warning before eventual dismissal which, whether or not contractually binding, are designed to ensure that employees are not unfairly dismissed. Since the right not to be unfairly dismissed is a statutory right which is not derived from contract, however, it is still open to an employee to claim that he has been unfairly dismissed even if his employer has faithfully complied with the contractual procedures.
76. Section 205 of the 1996 Act provides that some claims under the Act (including a claim in respect of unfair dismissal) must be brought by way of complaint to an industrial tribunal and not otherwise. This is a new provision made necessary because the 1996 Act (unlike its predecessor) gives industrial tribunals a limited jurisdiction in respect of some common law claims. The 1971 Act did not expressly provide that the jurisdiction of the industrial tribunals was exclusive, but it did not need to. It was clearly predicated on the existing state of the law as established in Addis’s case and confirmed in Malloch’s case. There would have been no point (for example) in excluding certain categories of employee from obtaining compensation for unfair dismissal if they could obtain a remedy by way of damages at common law; or for enabling the industrial tribunal to reduce the amount of compensation by reference to the employee’s own conduct if the employee could obtain damages at common law without any such reduction. Prior to 1996, therefore, the jurisdiction of the industrial tribunals to award compensation for unfair dismissal was exclusive in practice, not because it was made so by statute, but because it was premised on the absence of a corresponding remedy at common law.
77. But the common law does not stand still. It is in a state of continuous judicial development in order to reflect the changing perceptions of the community. Contracts of employment are no longer regarded as purely commercial contracts entered into between free and equal agents. It is generally recognised today that “work is one of the defining features of people’s lives”; that “loss of one’s job is always a traumatic event”; and that it can be “especially devastating” when dismissal is accompanied by bad faith: see Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 33 per Iacobucci J. This change of perception is, of course, partly due to the creation by Parliament of the statutory right not to be unfairly dismissed. If this right had not existed, however, it is possible that the courts would have fashioned a similar remedy at common law, though they would have proceeded by implying appropriate terms into the contract of employment. It would have been a major step to subject the employer’s right to terminate the relationship on proper notice to an obligation not to exercise the right in bad faith, and a still greater step to subject it to an obligation not to exercise it without reasonable cause: (a difficult distinction, but one drawn by McLachlin J in Wallace’s case, at p 44). Even so, these are steps which, in the absence of the statutory right, the courts might have been prepared to take, though there would have been a powerful argument for leaving the reform to Parliament. If the courts had taken the step themselves, they could have awarded common law damages for unfair dismissal consistently with Addis’s case [1909] AC 488, because such damages would be awarded for the breach of an implied but independently actionable term (as in Mahmud’s case [1998] AC 20) and not for wrongful dismissal. But the courts would have been faced with the difficult task of distinguishing between the mental distress and other non-pecuniary injury consequent upon the unfairness of the dismissal (for which the employer would be liable) and the similar injury consequent upon the dismissal itself (for which he would not). In practice, they would probably have been reduced to awarding conventional sums by way of general damages much as the industrial tribunals do.
78. I agree with Lord Hoffmann that it would not have been appropriate to found the right on the implied term of trust and confidence which is now generally imported into the contract of employment. This is usually expressed as an obligation binding on both parties not to do anything which would damage or destroy the relationship of trust and confidence which should exist between them. But this is an inherent feature of the relationship of employer and employee which does not survive the ending of the relationship. The implied obligation cannot sensibly be used to extend the relationship beyond its agreed duration. Moreover, manipulating it for such a purpose would be unrealistic. An employer who summarily dismisses an employee usually does so because, rightly or wrongly, he no longer has any trust or confidence in him, and the real issue is: whose fault is that? That is why reinstatement or re-engagement is effected in only a tiny proportion of the cases that come before the industrial tribunals.
79. But the courts might well have developed the law in a different way by imposing a more general obligation upon an employer to treat his employee fairly even in the manner of his dismissal. They could not, of course, have overridden any express terms of the contract or have held the dismissal itself to be invalid. As in the case of the statutory right, employers would probably have responded by introducing their own procedures of complaint and warning before eventual dismissal. But there would have been this difference; they would surely have taken care to incorporate such procedures into the contract of employment so that an employee who was dismissed in accordance with the procedure laid down in his contract could not claim damages for breach of an implied term.
80. But the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost.
81. For these reasons it is a step which, for one, I am not prepared to take. For the same reasons I am satisfied that it would not be appropriate to attempt to achieve the same result by taking the novel course of subjecting the employer’s contractual rights to a tortious duty of care.
82. I would dismiss the appeal.
McGrath v. Trintech Technologies Ltd. & Anor
[2004] IEHC 342
Laffoy J.
Liability at common law: the law
“While the Supreme Court in recent years has considered claims for compensation for psychiatric or psychological damage alleged to have been negligently inflicted in various contexts, for example, in the so-called “nervous shock” context (Kelly v. Hennessy [1996] 1 ILRM 321) and in the so-called “fear of disease” context (Fletcher v. Commissioner for Public Works [2003] 1 IR 465), as yet it has not had to consider directly the circumstances in which occupational stress resulting in psychiatric injury will give rise to liability on the part of an employer. That issue has been considered recently by courts in the United Kingdom. In reviewing the authorities from the United Kingdom referred to by counsel in their submissions, it seems to me that the most useful starting point is the decision of the Court of Appeal in Hatton v. Sutherland [2002] 2 All ER 1.
The Hatton judgment related to four conjoined appeals in each of which the defendant employer appealed against a finding of liability for an employee’s psychiatric illness caused by stress at work. Two of the plaintiffs (Hatton and Barber) were teachers in public sector comprehensive schools. The third (Jones) was an administrative assistant at a local authority training centre and the fourth (Bishop) was a raw material operative in a factory. In all of the cases except that of Jones the decision at first instance was reversed by the Court of Appeal. The judgment of the Court was delivered by Hale L.J. Having analysed the law on liability in negligence under the headings of duty, foreseeability, breach of duty, causation and apportionment and quantification, the Court listed sixteen “practical propositions” in determining liability for stress induced psychiatric injury in an employment context. The propositions are as follows:
(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. What this means is that “policy” considerations of the type referred to by Geoghegan J. in his judgment in the Fletcher case (at p. 518) do not arise. Distinctions which are made in determining liability for psychiatric harm in other circumstances, for example, distinguishing between “primary” and “secondary” victims, have no application in the case of psychiatric injury arising from stress in the workplace.
(2) The threshold question is whether this kind of harm to this 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). In the earlier analysis of the issue of foreseeability, it was stated (at p. 13) that the question is not whether psychiatric injury is foreseeable in a person of “ordinary fortitude”. The employer’s duty is owed to each individual employee.
(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 it 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 test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
(5) Factors likely to be relevant in answering the threshold question included the following:
(a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable job? Or are there signs that others doing the job are suffering from harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
(b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from him or others?
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
(7) To trigger a duty to take steps, 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.
(8) 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 costs and practicability of preventing it, and the justifications for running the risk.
(9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
(10) An employer can only reasonably be expected to take steps which are likely to do some good and the court is likely to need expert evidence on this.
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
(12) If the only reasonable and effective step 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.
(13) In all cases, therefore, it is necessary to identify the steps which the employer both should and could have taken before finding him in breach of his duty of care.
(14) The plaintiff must show that the breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm. Earlier, in its analysis of the issue of causation, the Court (at p. 16) illustrated the distinction inherent in this proposition. Where there are several different causes, as will often be the case with stress related illness of any kind, the plaintiff may have difficulty proving the employer’s fault was one of them. This will be a particular problem if the main cause was a vulnerable personality which the employer knew nothing about.
(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event. Earlier, in dealing with the issue of quantification, the Court (at p. 18) stated that where the tortfeasor’s breach of duty has exacerbated a pre-existing disorder or accelerated the effect of pre-existing vulnerability, the award of general damages for pain, suffering and loss of amenity will reflect only the exacerbation or acceleration. Further, the quantification of damages for financial losses may take some account of contingency for example, the chance that the plaintiff would have succumbed to a stress-related disorder in any event and this may be reflected in the multiplier to be applied in quantifying future loss of earnings.
The Court of Appeal then went on to apply the foregoing principles to the facts of the four cases under appeal. In only one appeal, Jones, was the decision at first instance upheld. Mrs. Jones had been employed as an administrative assistant in a local authority training centre from August, 1992 until January, 1995 when she went off sick with anxiety and depression. She never returned and was made redundant when the centre closed at the end of 1996. While there was no specific medical event which might have alerted her employers to the risk of the breakdown which occurred in January, 1995, her employers did know that excessive demands were being placed upon her. They also knew that she was complaining of unreasonable behaviour by her immediate manager, in that she had been threatened with non-renewal of her temporary post if she persisted in her complaints of overwork. These factors were taken sufficiently seriously for extra help to be arranged, not once but twice, but it was not actually provided. She had made two written formal complaints, one in July and one in November, 1994, that problems at work were causing harm to her health. It was not disputed that they did in fact cause her breakdown in January, 1995. On the basis of the foregoing facts, the Court stated (at p. 24) that the question was not whether her employers had in fact caused harm to her health before January, 1995, but whether it was sufficiently foreseeable that they would do so for it to be a breach of duty for the employers to carry on placing unreasonable demands upon her and not to follow through their own decision that something should be done about it. The Court concluded, not without some hesitation, that the evidence at first instance was sufficient to entitle the judge to reach the conclusion that it was. It was pointed out that, unlike the other appeals before the Court, Jones was one where the employer knew that the employee was being badly treated by another employee and could have done something to prevent it.
One of the appellants before the Court of Appeal, Barber, appealed to the House of Lords against the decision of the Court of Appeal. The speeches of the Law Lords were delivered on 1st April, 2004 and are reported as Barber v. Somerset County Council [2004] 2 All ER 385. The decision of the Court of Appeal was reversed. However, there was broad acceptance of the propositions put forward by the Court of Appeal. In his speech, Lord Walker of Gestingthorpe described the exposition and commentary in, inter alia, the part of the judgment dealing with the law as a valuable contribution to the development of the law. He referred to the recognition by the Court of Appeal that the causes of mental illness will often be complex and depend upon the interaction between the patient’s personality and a number of factors in a patient’s life and that it is not easy to predict who will fall victim, how, why or when. He stated that this uncertainty has two important consequences. First, overworked people have different capacities for absorbing stress, and different breaking points. Secondly, senior employees – especially professionals – will usually have quite strong inhibitions against complaining about overwork and stress, even if it is becoming a threat to their health. Commenting on the portion of the judgment of the Court of Appeal (para. [29] at p. 15) from which the proposition set out at (6) above was abstracted, Lord Walker emphasised that the analysis was useful practical guidance and must be read as that and not as having anything like statutory force. He emphasised that every case will depend on its own facts and stated that the following statement of Swanwick J. in Stokes v. Guest, Kean and Nettlefold (Bolts & Nuts) Ltd. [1968] 1 W.L.R. 1776 at 1783 remains the best statement of general principle:
“. . . the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take some more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequence if it does; he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
In dissenting from the majority view, Lord Scott of Foscote expressed a preference for the statement of the law contained in paragraph 29 of the judgment of the Court of Appeal over the statement of general principle quoted above, pointing out that Swanwick J. did not have in mind the problems of psychiatric illness caused by stress. He contrasted an appreciation of the existence of physical dangers of the sort which arose in the Stokes case (the risk of the plaintiff contracting cancer of the scrotum from exposure at work over a long period to mineral oils which, on a daily basis, had saturated his clothing and come in contact with his skin), which is dependent on scientific and medical knowledge, with psychiatric illness caused by stress as in the case of the Barber appeal, where the employers could only know what Mr. Barber told them.
The outcome of the appeal to the House of Lords in the Barber case turned on the application of the relevant principles of law to the facts of the case. The facts were that since 1984 Mr. Barber had been the head of the mathematics department at a second-level school. In 1995 that post was abolished in a restructuring of staffing because of falling numbers. He reapplied for a new post in his subject. In order to maintain his salary level he also applied to be the school’s project manager for public and media relations and was appointed. He worked long hours in discharging his new responsibilities and began to suffer from stress. In February, 1996 he spoke of “work overload” to one of the senior management team. He was away from work in May, 1996 for three weeks, returning with sick notes signed by his doctor, recording his condition as “overstress/depression”. He completed his employer’s form of sickness declaration stating his trouble as “overstressed/depression” and that form was countersigned by one of the deputy heads of the school. During June and July, Mr. Barber had meetings with the senior management team about his workload and his health but no steps were taken to investigate or remedy the situation. In November he suffered a mental breakdown at school and he took early retirement at the end of March, 1997, when he was 52 years old.
In applying the relevant principles of law to the facts, Lord Walker stated that the issue of the breach of the employer’s duty of care to Mr. Barber was close to borderline; it was not a case of a flagrant breach of duty any more than it was an obviously hopeless claim. In Lord Walker’s view, the employer’s duty to take some action arose in June and July, 1996 and continued so long as nothing was done to help Mr. Barber. He stated that what the Court of Appeal failed to give adequate weight to was the fact that Mr. Barber, an experienced and conscientious teacher, had been off work for three weeks with no physical ailment or injury, his absence being certified by his doctor as being due to stress and depression. The senior management team should have made enquiries about his problems and seen what they could do to ease them, in consultation with the officials at the council’s education department, instead of brushing him off unsympathetically or sympathising but simply telling him to prioritise his work. Lord Walker did not accept an argument that, given the problems the school was facing, there was nothing that the school could have done other than to advise Mr. Barber to resign or, in the last resort, to terminate his employment. He stated that at the very least the senior management team should have taken the initiative in making sympathetic enquiries about Mr. Barber when he returned to work, and making some reduction in his workload to ease his return.
After commenting that it is generally unprofitable to contrast the facts of one case with another, a view with which I respectfully agree, Lord Walker contrasted the facts before him with the facts in a Scottish case, which is relied on in the plaintiff’s submissions, Cross v. Highlands and Islands Enterprise [2001] IRLR 336. Lord Walker summarised the facts: a promising 39 year old executive, employed in a job in which (because of geographical factors) close day to day supervision of his work was impossible, became ill with depressive illness and killed himself. The employer was held not liable because no causative breach of duty was established. After the employee had been off work with depression, his line manager travelled to see him and spent almost the whole day discussing his work and his future with him. He reduced his responsibilities and continued to maintain contact with him by telephone. Unfortunately the depression continued. The employer was not liable for the tragedy which ensued because the evidence did not establish that objectively the job was the problem. For all the employer knew, it was dealing with an employee who, for reasons that were not clear, had become unable to cope with a job that he had previously managed successfully. By contrast, in Mr. Barber’s case, there was no doubt that the job was the problem.
Prior to the decision of the Court of Appeal in Hatton, the English High Court had applied the ordinary principles of employer’s liability to a claim for psychiatric illness arising from stress in employment in what was described by Hale L.J. as “the landmark case” of Walker v. Northumberland County Council [1995] 1 All ER 737. The plaintiff, Mr. Walker, had been employed by the defendant local authority as an area social services officer from 1970 until 1987. He was responsible for managing four teams of social services field workers in an area which had a high proportion of childcare problems, among which child abuse references were particularly prevalent. In 1986 he suffered a nervous breakdown because of the stress and pressures of work and was off work for three months. Before he returned to work he discussed his position with his superior who agreed that some assistance should be provided to lessen his work burden. In the event, when he returned to work only very limited assistance was provided and he found that he had to clear the backlog of paperwork that had built up during his absence while the pending childcare cases in his area were increasing at a considerable rate. Six months later he suffered a second mental breakdown and was forced to stop work permanently. In February, 1988 he was dismissed by the local authority on the grounds of permanent ill health. His action against the local authority claiming damages for breach of its duty of care, as his employer, to take reasonable steps to avoid exposing him to a health-endangering workload was successful. Having found that work-related stress and pressure were the only external circumstances which brought about Mr. Walker’s first breakdown, Colman J. considered whether that breakdown was caused by a breach of the defendant’s duty of care.
Colman J. was satisfied that by 1985 at the latest it was reasonably foreseeable to Mr. Walker’s line manager on the basis of the information he had that by reason of stress of work there was in general some risk that Mr. Walker might sustain a mental breakdown of some sort in consequence of his work. He then went on to assess how great the reasonably foreseeable risk was: was it so slight as to be negligible or was it a materially substantial risk? Having stated that there was no evidence that officers in the middle management cadre, as distinct from fieldworkers, were particularly vulnerable to stress-induced mental illness, Colman J. posited the test on foreseeability as follows:
“Accordingly, the question is whether it ought to have been foreseen that Mr. Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy workload. For if the foreseeable risk were not materially greater than that there would not, as a matter of reasonable conduct, be any basis upon which the council’s duty to act arose.”
The first sentence in that quotation was implicitly approved of by the Court of appeal in the Hatton case (at p. 14), Hale L.J. pointing out that it turned the focus to the individual.
On the evidence in the Walker case Colman J. was not persuaded that Mr. Walker’s line manager ought to have appreciated that Mr. Walker was at materially greater risk of stress-induced mental illness than an area manager with a busy area would normally be. He laid particular emphasis on evidence of a colleague of Mr. Walker, a very experienced team leader, who thought he would have been able to do Mr. Walker’s job of area manager, which would not suggest that the work appeared to him to be unmanageable or likely to endanger his health. On that basis, Colman J. held that it was not reasonably foreseeable to the council that, before his first breakdown, the workload to which Mr. Walker was exposed gave rise to a material risk of mental illness.
However, on the issue as to whether Mr. Walker’s second illness was caused by a breach of the council’s duty of care, Colman J. found that, having regard to the reasonably foreseeable size of the risk of repetition of Mr. Walker’s illness if his duties were not alleviated by effective additional assistance and to the reasonably foreseeable gravity of the mental breakdown which might result if nothing was done, the standard of care to be expected of a reasonable local authority required that in March, 1987 such additional assistance should be provided, if not on a permanent basis, at least until restructuring of the social services had been effected and the workload on Mr. Walker thereby permanently reduced. When Mr. Walker returned from his first illness the council had to decide whether it was prepared to go on employing him in spite of the fact that he had made it sufficiently clear that he must have effective additional help if he was to continue. It chose to continue to employ him, but provided no effective help. In doing so, Colman J. found that the council acted unreasonably and therefore in breach of its duty of care.
In his analysis of the law in England and, in particular, the test of reasonable foreseeability in the context of the risk of work-engendered psychiatric injury, Colman J. referred to an Australian case as a helpful illustration of the correct approach: the judgment of the Supreme Court of the Australian Capital Territory delivered by Miles C.J. in Gillespie v. Commonwealth of Australia [1991] 104 A.C.T.R. 1. That case involved a claim by a former Australian diplomat against the Australian Foreign Affairs and Trade Department in respect of a mental breakdown which he suffered in consequence of stress created by living conditions in Caracas, Venezuela, where he had been posted. The plaintiff contended that such stress, and therefore his injury, would have been avoided or reduced if the defendants had, before sending him to Caracas, prepared him by a course of training for the severely stressful conditions likely to be encountered. Colman J. quoted the following observations of Miles C.J. (at p. 15):
“In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present purposes is to be considered only insofar as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any ‘unnecessary’ risk was eliminated. In practical terms this means that the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a socially acceptable, level.”
Miles C.J. held that the magnitude of the harm was considerable but there was not a high degree of probability that harm of that kind would eventuate. He addressed himself first to the question whether the factors involved in moving to such an environment as Caracas would have involved a reasonably-foreseeable risk of breakdown to any ordinary person, and secondly to the question whether it was foreseeable that the plaintiff was more susceptible to psychological harm than an ordinary member of the diplomatic staff in Caracas. Having held that some risk of psychiatric harm was reasonably foreseeable, but that the plaintiff’s particular vulnerability was not foreseeable, he concluded that, even if the defendant had taken steps to warn the plaintiff, it was not established that he would not have gone to Caracas or, had he done so, avoided his mental breakdown. Consequently the plaintiff’s claim failed.
The plaintiff, Mr. Gillespie, appealed to the Federal Court of Australia (see McMahon & Binchy on Law of Torts, Third Edition, p.496, footnote 95). The appeal, which is reported in (1993) Aust. Tort Reports 81-217, was dismissed. The appeal was essentially decided on the facts.
I have considered the decision of Colman J. in the Walker case in some depth, because it has been the subject of judicial comment in this jurisdiction. In Fletcher v. Commissioners of Public Works, the Supreme Court held that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by plaintiffs of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of their negligent exposure to health risks by their employers where the risk was characterised by their medical advisers as remote. At the end of his judgment, Keane C.J. added two observations, the first of which was as follows:
“. . . we are not in this case concerned with the question as to whether an employer should be held liable where it is reasonably foreseeable that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, an issue resolved in favour of the plaintiff by the English High Court in Walker v. Northumberland County Council. . .”
Four years earlier, in his comprehensive analysis of the “nervous shock” cases in Curran v. Cadbury (Ireland)Ltd. [2000] 2 I.L.R.M. 343, Judge McMahon observed, at p. 349:
“The duty of the employer towards his employee is not confined to protecting the employee from physical injury only; it also extends to protecting the employee from non-physical injury such as psychiatric illness or the mental illness that might result from negligence or from harassment or bullying in the workplace. In Walker v.Northumberland County Council . . . the English courts imposed liability where the plaintiff foreseeably suffered a nervous breakdown because of unreasonably stressful working conditions imposed on him by his employer. There is no reason to suspect that our courts would not allow this line of authority if it came before the courts in this jurisdiction.”
The only decision of this court which has been cited by counsel in which damages have been awarded for a psychiatric disorder, independent of any physical injury, caused by stress in an employment context is the decision of Budd J. in McHugh v. The Minister for Defence [2001] 1 IR 424. The facts in that case are succinctly summarised in the head note. The plaintiff, a member of the Defence Forces, while on his third tour of duty in the Lebanon was exposed to a life-threatening incident, which sensitised him to further events. Subsequently, he was involved in further incidents which caused him to suffer acute distress. Thereafter he manifested symptoms of post-traumatic stress disorder, which were obvious and were the subject of comment among his fellow soldiers and NCOs and were brought to the attention of his Platoon Commander. There was an awareness in the Defence Forces of the problem of post-traumatic stress disorder and notes on post-traumatic stress disorder had been distributed to officers going to the Lebanon from about 1990. The plaintiff’s claim was that the defendants were negligent in not providing remedial treatment for him following his exposure to stressful incidents. In his judgment, Budd J. outlined the relevant legal principles applicable in determining whether the employer was liable in terms which are broadly in line with the authorities from the other jurisdictions to which I have referred, stating as follows (at p. 429):
“The defendants, as employer, are under a duty to take reasonable care for the safety of their employees and must keep abreast with contemporary knowledge in the field of reduction in the effects of potential afflictions to which soldiers are inevitably exposed in the course of duty. The perils of post-traumatic stress disorder in those subjected to stress have been well known to the defendants for many years prior to 1992. . . .
As is elementary, the plaintiff is not entitled to compensation because in his work in the Lebanon he had been exposed to stress or because he had contracted post-traumatic stress disorder. He must prove, on the balance of probabilities, that his injury was caused by the fault of his employer. . . . The plaintiff’s strange and out-of-character behaviour, while he was based at Tibnin, and his manifest symptoms should have been noted and his obviously stressed condition brought to the attention of the medical officers. The failure to recognise and treat his symptoms was due to culpable negligence on the part of his superiors and resulted in his contracting chronic post-traumatic stress disorder. On the evidence, I have concluded that the likelihood is that, if the plaintiff had received counselling and therapy when he showed the clear signs of stress and incipient post-traumatic stress disorder in early 1993, his condition would have been relieved and he would not have become subject to the long-running and persistent post-traumatic stress disorder which has so adversely affected his working, social and domestic life.”
The effect of the decisions of the Court of Appeal and the House of Lords in the Hatton/Barber case is to assimilate the principles governing an employer’s liability at common law for physical injury and for psychiatric injury where an employee claims that the psychiatric injury has resulted from the stress and pressures of his or her working conditions and workload. In my view, there is no reason in law or in principle why a similar approach should not be adopted in this jurisdiction. I consider that the practical propositions summarised in the judgment of the Court of Appeal in the Hatton case are helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in the Barber case – that one must be mindful that every case will depend on its own facts.
Claim for breach of statutory duty: the law
The general thrust of the plaintiff’s claim for damages for breach of statutory duty, as I understand it, is that the statutory provisions which he invokes to support his claim impose a more stringent duty of care on the defendant, as his employer, than is imposed at common law.
The statutory provisions which the plaintiff invokes are the provisions in relation to general duties set out in the Safety, Health and Welfare at Work Act, 1989 (the Act of 1989) and, in particular, the following provisions:
(1) Section 6, which provides that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his employees. Of the requirements specified in sub-s. (2) of s. 6 the plaintiff invokes –
paragraph (d) (“the provision of systems of work that are planned, organised, performed and maintained so as to be, so far as is reasonably practicable, safe and without risk to health”);
paragraph (e) (“the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the safety and health at work of his employees”);
paragraph (i) (“the provision and the maintenance of facilities and arrangements for the welfare of his employees at work”); and
paragraph (j) (“the obtaining, where necessary, of the services of a competent person . . . for the purpose of ensuring, so far as is reasonably practicable, the safety and health at work of his employees”).
(2) Section 12, which mandates the preparation of a safety statement, which shall specify the manner in which the safety, health and welfare of persons employed by the employer shall be secured at work and shall be based on an identification of the hazards and an assessment of the risks to safety and health at the place of work.
The plaintiff also invokes the regulations contained in the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (S.I. No. 44 of 1993) (the 1993 Regulations) and, in particular, Regulations 5, 8, 9, 10, 11 and 13 thereof.
It was submitted on behalf of the plaintiff that the 1993 Regulations impose virtually an absolute duty on employers in relation to the health and safety obligations imposed by the Act of 1989 and the 1993 Regulations and that, therefore, it is not necessary that the plaintiff should establish blameworthiness on the part of the defendant as his employer. As authority for this proposition, counsel for the plaintiff relied on the decision of this court (Kearns J.) in Everitt v. Thorsman Ireland Ltd. [2000] 1 IR 256. The plaintiff in that case was employed by the first defendant, a manufacturer of plastic fittings, as a general assistant. When, in the course of his employment, the plaintiff was endeavouring to open the lid of a bin with a lever provided for that purpose, the lever snapped and broke, causing the plaintiff to fall and sustain injury. The lever, which was found to have a latent defect, was supplied to the first defendant by the second defendant. The plaintiff claimed both for negligence and for breach of statutory duty. It was held by Kearns J. that the common law duty of an employer was to exercise all reasonable care in relation to his employees and that this duty was discharged when the employer bought from a reputable source a tool whose latent defects he had no means of discovering. However, on the question of breach of statutory duty, Kearns J. found that Regulation 19 of the 1993 Regulations, which provides that it shall be the duty of every employer to ensure that the necessary measures are taken so that work equipment is suitable for the work to be carried out or is properly adapted for that purpose as may be used by employees without risk to their safety and health, covered the situation. On the application of Regulation 19 to the circumstances Kearns J. stated as follows at p. 263:
“What does, however, seem to me to cover the situation is reg. 19 of [the 1993 Regulations] which imposes virtually an absolute duty on employers in respect of the safety of equipment provided for the use of their employees.
. . .
Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employer in this case, these Regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy. As O’Flaherty J. pointed out [in Connolly v. Dundalk Urban District Council, Unreported, Supreme Court, 18th November, 1992] an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.”
Kearns J. found for the plaintiff, holding that there had been a breach of statutory duty on the part of the first defendant. He also found that the second defendant was negligent as either producer or supplier of the faulty lever. He held that the first defendant, the employer, was entitled to a full indemnity from the second defendant.
In the Act of 1989 the expression “personal injury” is defined in similar terms to the definition contained in s. 2 of the Civil Liability Act, 1961, as including “any disease and any impairment of a person’s physical or mental condition”. It is undoubtedly the case that the general duties imposed by the Act of 1989 extend to the protection of the psychiatric health of employees and comprehend the obligation to provide systems and measures which safeguard the employee against psychiatric injury induced by the stress and pressures of the employee’s working conditions and workload. As is pointed out in McMahon and Binchy at p. 605 (footnote 93), almost without exception, the 1993 Regulations provide “for strict and even absolute duties”. However, in a civil action the plaintiff must establish that the injury was caused by the breach. The question which arises in this case is whether the plaintiff has established a breach of a statutory duty in consequence of which he has suffered the injury and loss of which he complains.
I have already quoted the first of the two additional observations made by Keane C.J. at the end of his judgment in Fletcher v. The Commissioners of Public Works. For completeness, as it is quoted in the defendant’s submission, I have considered the relevance of the second, which was to the following effect:
“Secondly, the claim of the plaintiff in the present case was grounded on breach of statutory duty in addition to common law negligence. It is clear that in the absence of any specific statutory provision entitling the plaintiff to recover damages for psychiatric injury, the same principles as to liability must apply.”
That observation was made in the context that, while the defendant admitted that, as employer, it had failed to take proper precautions for the safety, health and welfare of the plaintiff as its employee, and conceded that as a result of that failure the plaintiff was exposed to significant quantities of asbestos dust in the course of his employment and, as a further consequence, was exposed to the risk of contracting mesothelioma in later life, the plaintiff did not manifest any physical symptoms of ill health resulting from his exposure to asbestos dust. The plaintiff’s case was that he was entitled to be compensated for psychiatric injury which he suffered consequent upon his being informed that he was exposed to the risk of contracting mesothelioma, although that risk, on the evidence, was veryremote. As is clear from the first additional observation of Keane C.J., which I have quoted earlier, in essence, he distinguished circumstances such as arise in this case, where the claim relates to a psychiatric injury alleged to have been induced by the stress and pressures of the claimant’s workload, and the situation under consideration in the Fletcher case. Therefore, it is not clear to me that the second observation, which in any event was obiter, was directed to factual circumstances such as arise in this case.”
Maher v. Jabil Global Services Ltd.
[2005] IEHC 130
Clarke J.
“The Law
In McGrath v. Trintech Technologies and Anor (High Court, Unreported 29th October, 2004) Laffoy J. reviewed the authorities in relation to an employer’s liability for psychiatric illness induced by stress and pressures at work. In the course of her judgment Laffoy J. cited with approval 16 “practical propositions” set out in the judgment of Hale L.J. in Hatton v. Sunderland (2002) 2 All ER 1 which are designed to assist in the assessment of such cases. While not all of those practical propositions will be relevant in each case, it was accepted by both sides that the principles identified by Laffoy J. represent the law in this jurisdiction.
As was pointed out in Quigley v. Complex Tooling and Moulding (Lavan J. Unreported 9th March, 2005):-
“It has been a fairly recent movement towards the thinking that an employer must take care not only of the physical health of their employees, for example, by providing safe equipment, but also take reasonable care to protect them against mental injury, such as is complained of by the plaintiff in this case. It follows on from this that employers now have an obligation to prevent their employees from such that would cause mental injury i.e. stress, harassment and bullying in the workplace”.
In addressing the basis upon which the court should approach such matter Lavan J. noted that:-
“The fundamental question is whether the defendant fell below the standard to be properly expected of a reasonable and prudent employer”.
It is thus clear that at the level of principle there is no distinction to be made in the assessment of the liability of an employer in cases where an employee claims that as a result of negligence he suffered, on the one hand, physical injury or, on the other hand, mental injury. Obviously the practical way in which the assessment of the duty of care which an employer owes may, however, differ.
As identified in Hatton it seems to me that the starting point for any consideration of liability in a case such as this must be ask the following questions:-
(a) has the plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress;
(b) if so is that injury attributable to the workplace; and
(c) if so was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.
I would propose to address those questions in turn.
Injury
On the basis of the evidence of Dr. David Shanley and the other medical witnesses called it seems clear that the plaintiff has, in fact suffered an injury to his mental health which goes beyond what Dr. Shanley described as the ordinary stress which many in the workplace will suffer from to time and which does not, as a matter of principle, give rise to a claim for damages. Indeed there was no significant dispute about this fact at the trial of the action.
Causation
Again on the basis of the medical evidence there seems little dispute but that the mental injury which the plaintiff suffered arose out of his experiences in the workplace and may thus be said to be attributable to his employment.
Foreseeability
On the facts of this case the real issues come down to ones of whether it was foreseeable that the plaintiff would suffer the injuries concerned. In that context it is necessary to consider separately the position during the DELL management period on the one hand and the Nortel Shelf period on the other hand.
(a) DELL Management Period
Prior to the difficulties encountered in September and early October there is no evidence that the plaintiff was in anyway vulnerable to injury. It is clear from Hatton that injuries may be foreseeable either because having regard to the burden of work or other conditions in which the employee is required to work the risk of such injury ought to be anticipated generally by a prudent employer. Such a factor would potentially be applicable to all employees on the basis that it was foreseeable that any normal employee might suffer mental injury as a result of being exposed to the work and other practices concerned. Alternatively injury may be foreseeable in respect of an individual employee having regard to any particular vulnerability to injury known to the employer in respect of that employee.
For the reasons indicated earlier in the course of this judgment it does not seem to me that, having regard to such factors as those identified in Item 5 of the practical propositions specified in Hatton, that the objective threshold for foreseeability is met. There is no evidence from which I could conclude that the work load was more than is normal in the particular job. While it may be that the work turned out to be more demanding for the plaintiff I am not satisfied that there was any evidence upon which it is reasonable to infer that the employer should have known this. It does not appear that there is any real evidence that the demands made of the plaintiff were unreasonable when compared with the demands made on others in the same or comparable jobs. Nor were there any signs that others doing the job had suffered harmful levels of stress or that there was an abnormal level of sickness or absenteeism in the same job or in the same department.
Insofar as there may have been a particular issue, in respect of this plaintiff, there does not seem to have been any information available to the employer until such time as the plaintiff went sick in October which could have indicated to the employer that the plaintiff was suffering particular difficulties. Indeed it is clear on all the evidence that the plaintiff did not make any relevant complaints to his employer during this period.
In all the circumstances I am not therefore satisfied that there is any evidence from which I could conclude that objectively speaking the job which the plaintiff was required to do as manager in the DELL area was such as would foreseeably give rise to mental injury. Neither am I satisfied that, during that period, the employer had any particular knowledge of a vulnerability of the plaintiff to injury which should have led the employer to take additional care in respect of this particular employee. In all the circumstances I cannot see any breach of duty during that period.
(b) The Nortel Shelf Period
The situation is somewhat more complex during this period. Firstly the employer was aware of a particular vulnerability on the part of the plaintiff. The employer was aware that the plaintiff had already suffered from work related stress of a reasonably serious nature. Secondly the employer was aware from the report of Dr. Halpin that there was an additional risk in dealing with the plaintiff by virtue of the fact that while he was, on the one hand, unfit to go back to the job which he previously had held as manager, there was also likely to be problems encountered with the plaintiff’s ego in the event that he was placed in a position which would be perceived as a demotion (even if not formally so) from the position which he previously held. It is, of course, common case, that it was appropriate to place the plaintiff in a position such as he did in fact fill at least initially upon his return. The real issue between the parties concerns the events which occurred in February and thereafter. For the reasons indicated earlier in this judgment I am not satisfied that there was any concerted plan on the part of the employer to seek to exclude the plaintiff from his employment. As also appears above I am satisfied that the plaintiff did make some complaint about the inadequacy of the work which he was been given but not as frequently or in the terms which he claims. In those circumstances I am not satisfied that the plaintiff has established a breach on the part of his employer of a duty of care during this period either. In coming to that view I have also taken into account Item 11 of the practical propositions set out in Hatton which indicates that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. That proposition must, of course, be subject to a caveat that if the court was satisfied that notwithstanding the provision of such a service the truth was that an employer was intent on removing an employee the availability of such a service might be regarded as being more a matter of form than substance. However I see nothing in the evidence in this case from which it might be inferred that the provision of the counselling service to the plaintiff was in anyway a “going through the motions” on the part of the employer. In coming to that view I would emphasise that it is important for a court in assessing matters such as this not to be unduly blinded by the presence of practices and procedures which look good on paper but do not, in substance, amount to those necessary to ensure compliance with an appropriate duty of care. However even applying such a healthy scepticism to paper procedures I am satisfied that there was in substance an appropriate counselling service available to the plaintiff which ought to have allowed him to be re-integrated into the workforce in an appropriate way had that being both his wish and it being practically possible.
Conclusions
In all the circumstances it does not seem to me that it has been established that the employer in this case was guilty of any breach of duty of care then the plaintiff’s claim must therefore fail.”
Nyhan -v- Commissioner of An Garda Siochana & Anor
[2012] IEHC 329
Cross J.
“Bullying and Harassment
3.1 This Court in the case of Kelly v. Bon Secours Health System [2012] IEHC 21 (Unreported, High Court, Cross J., 26th January, 2012), emphasised that there is no distinctive tort of bullying and harassment. Whether the defendant has a contract of employment with the plaintiff does not alter the situation in that the defendants clearly owe a duty of care not to expose the plaintiff to injury. One of the sub-aspects of this duty may be the question of bullying and harassment.
3.2 In the majority of cases under the heading of “bullying and harassment”, the bullying concerned is usually one or more employee of a defendant allegedly bullying the plaintiff.
3.3 In this case, as well as bullying, of course, the plaintiff alleges breach of contract, scapegoating of the plaintiff in order to protect more senior officers and isolating him and ignoring his complaints. In effect, the plaintiff is alleging a conspiracy by the defendants against him.
3.4 In most cases involving bullying and harassment, the key issue to be addressed is whether the employer had or ought to have had knowledge of the activities of employees.
3.5 In Quigley v. Complex Tooling and Moulding Limited [2009] 1 IR 349 at para. 13, Fennelly J. adopted the definition of “workplace bullying” at para. 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as being an accurate statement of the employers obligations 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.”
Fennelly J. went on to state:-
“Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
…..
3.8 As I stated in Kelly, in my view, the best summary of the questions to be addressed in a case such as this was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233, as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
3.9 These three questions, so aptly posed by Clarke J. are, as agreed by Ms. Bolger, subject to the pre-existing requirement that the plaintiff establish an actionable wrong in the form of negligence, breach of contract or breach of duty or in this case the quasi conspiracy which is clearly alleged in what has been described as the cover-up. Whether or not any injury results from an actionable wrong is, of course, measured by the standard of reasonableness.
………
6.14 It was submitted on behalf of the plaintiff that he was entitled to what is described as a “risk assessment” under the provisions of s. 19 of the Safety, Health and Welfare at Work Act 2005.
6.15 Section 19 provides:-
“(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a ‘risk assessment’) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions.”
6.16 It is the view of the court that the plaintiff insistence on a written safety assessment in this regard is misconceived. Risk assessments as required by s. 19 are applicable to An Garda Síochána as well as other employers.
6.17 The requirement for a “risk assessment” in writing relates to perceived hazards in the workplace. “Risk assessments” have no relevance to the ascertaining by the members of An Garda Síochána of risks of a particular threat of violence to the plaintiff in operational terms. Members of An Garda Síochána are frequently “at risk” as a result of their dealings with dangerous criminals. The concept of a health and safety requirement for a “risk assessment” plays no part in any ascertaining of such operational risks or hazards to the members of the force. It would be to do violence to the language of the statue and indeed to commonsense to hold that s. 19 had any application to the plaintiff’s situation.
6.18 In this case, the plaintiff was given repeated assurances on behalf of the defendants that there was no risk to him. This represents the defendants’ proper response to the plaintiff’s requests that any threat to him be ascertained. The plaintiff declined to accept these assurances. The court does not believe that had any of these statements been conveyed to the plaintiff in writing that he would have been any more reassured by them.
…
….
6.33 In November 2009, the plaintiff agreed to return to work. He had been offered the option of a “easy” job or a posting elsewhere but he chose to go back to his former position of community policing. On the plaintiffs first day back he went about collecting his uniform with his senior officer and on second day he was put to office work. He says that at this stage he came across a number of files in the offices of the garda station relating to the murder which reinforced his belief that members of An Garda Siochana of a senior rank had prior knowledge of specific threats to Ms. Saulite. The plaintiff did not state the nature of these files.
6.34 The plaintiff states that his superior officer advised him that he would be required to drive a “riot van” that Friday evening.
6.35 The court had heard the evidence from the plaintiff and from his superior officer, and the court accepts, that the plaintiff was not asked to drive “a riot van”. He was asked to drive a van. This was a normal part of community policing. It may have involved the plaintiff interacting with intoxicated young members of the public and may have involved him working late into the night. However, the court also accepts that the plaintiff never made any concerns in this regard known to his superiors. However, the plaintiff did report sick and unfit for duty and has remained out of work since that time.
6.36 The plaintiff’s attempts to invoke the bullying and harassment procedure were resisted by the defendants on the basis that the complaints did not amount to bullying and harassment. The plaintiff then made written complaints invoking the grievance procedure and made further written complaints at various meetings as described above.
6.37 As previously stated, the court is not of the view that any of the actions by the defendants in dealing with the plaintiff’s various complaints amounted to a breach of duty by the defendants to the plaintiff. It is, of course, possible that the defendants could have come to an operational conclusion that protection ought to have been given to Ms. Saulite. Even if there may have been a lack of coordination in the defendants dealing with the matter, this Court is not of the view that any of this represented a breach of duty to the plaintiff or that it amounted to bullying and harassment of the plaintiff or that the manner by which the defendants dealt with the plaintiffs complaints was not adequate in the circumstances.
6.38 In the view of the court, the defendants dealt with the plaintiff’s complaints by attempting again and again to reassure him that there were no threats against him and that there was no prior knowledge among the gardai of direct threats to Ms. Saulite.
6.39 Again, as previously stated, to come to this conclusion, is not to end the matter as the plaintiff also has specific concerns and objections to the manner in which the plaintiffs medical situation was dealt with and in particular alleges that the defendants acted in breach of their own medical advice in the way that they dealt with the plaintiff and also failed to apply proper procedures when they judged that the plaintiff was not entitled to any further sick pay.
…………….
8. Conclusion
8.1 The plaintiff is a vulnerable individual who suffered great stress in an incident in 1999. In 2006, having carried out excellent police work on behalf of Ms. Saulite, he was then understandably shocked and indeed horrified by her murder. When the plaintiff discovered that he, together with Sergeant Hughes, had been given a draft victim impact statement in which Ms. Saulite had expressed fears in relation to H.H., the plaintiff was again naturally shocked. When the plaintiff believed, through a misunderstanding from Superintendent O’Sullivan, that the gardai were in possession of direct threats against Ms. Saulite’s life from H.H., which they chose to ignore, and that he and Sergeant Hughes were apparently the only focus of disciplinary investigation, the plaintiff feared being scapegoated.
8.2 The plaintiff then also feared for his life and the life of his family from H.H. He was given garda protection and then this was withdrawn. He sought reassurances from the Commissioner initially as to the level of threat against him. Reassurances were given time and time again. The plaintiff did not accept these reassurances. The plaintiff went on to fear persecution from the first defendant as much, if not more so, than any physical threats from H.H.
8.3 This idea of persecution became fixed in his mind and nothing that was said could shake him from this conviction.
8.4 I believe at some stage the plaintiff’s depression and anxiety and panic symptom eased but unfortunately they have returned.
8.5 As stated previously, I do not believe that the complaints the plaintiff makes amount to bullying or harassment or breach of duty or negligence by the defendants. I believe that it is clear that there was no scapegoating of the plaintiff or Sergeant Hughes because the garda authorities were never attempting to cover up senior management as there was nothing to cover up.
8.6 While some of the plaintiff’s grievances might have been dealt with differently, and while the initial investigation into Ms. Saulite’s death might with hindsight have been better co-ordinated, none of these factors give the plaintiff an actionable case against the defendants.
8.7 The issue of contributory negligence does not arise as I do not believe that there is any liability of the defendants to the plaintiff, but were I to decide that issue, I do not believe that it any way the plaintiff should be faulted due to the level of his engagement with the defendants. The plaintiff was I believe at all times and still is sincere in his convictions, misplaced though they may be. He fully engaged with the defendants as much as the defendants fully engaged with the plaintiff.
8.8 It is not the function of this Court to decide the issue of the plaintiffs stopped pay and the court has already made comments in this regard.
8.9 My judgment in this case is influenced by the stated ongoing goodwill to the plaintiff from the defendant.
8.10 It is not within the function of this judgment to decide on the future of the plaintiff in An Garda Síochána. It is to be hoped that the plaintiff does have such a future as he now himself also hopes and has been stated to him by his new superior officer.
8.11 For the reasons outlined above, the plaintiff must fail in this case and I dismiss same. “
Kelly v Bon Secours Health System Ltd
[2012] IEHC 21, Cross J
JUDGMENT of Mr. Justice Cross delivered on the 26th day of January, 2012
1. Introduction
1.1 The plaintiff in these proceedings was born on 3rd May, 1947 and is a separated mother, who commenced employment with the defendants by a contract commencing on 17th February, 2003. She was initially working at the defendant’s hospital in Tralee, Co. Kerry, as a temporary/part-time receptionist. At that time she was also working part-time with the local St. Vincent DePaul.
1.2 The plaintiff who represented herself commenced proceedings (which at the time were settled by counsel and with a benefit of a solicitor) by personal injuries summons claiming damages for injury, loss and damage caused by two distinct matters.
1.3 The easiest cause of action to contain is the plaintiff’s claim that on 24th August, 2004, whilst carrying out her duties in the records section of the hospital (to which she had been transferred) she sustained injuries when she twisted her back when carrying files.
1.4 The much more involved and intricate aspect of the plaintiff’s claim is a claim for injury and loss caused by the alleged harassment, bullying, abuse, intimidation and discrimination in the course of her employment with the defendants. The plaintiff brings this claim under the headings of negligence, breach of duty, breach of statutory duty and breach of contract and misrepresentation.
2. The Accident at Work
2.1 The plaintiff gave evidence by way of her extensive opening statement which she then swore to be correct and was subjected to extensive cross examination.
2.2 The plaintiff claims that the volume of her work was enormous, that she was asked to carry out impossible deadlines, she was never given any manual handling training and due to the repetitive lifting and turning, she injured her back. She cried out in pain as to the severity of this and it was witnessed by H.C., the line manager, who subsequently refused to sign an accident report form. Subsequently, in answer to questions from the bench, the plaintiff indicated that they were very short staffed on the day, H.C. was sitting down because she had injured her foot or had some sort of foot problem and there were lots of charts to be put away before any other work would commence. On that particular day, there were maybe over two hundred charts but she was not exactly sure and she was kept being told to hurry up and had to get them done before 9am.
2.3 The plaintiff had collected the charts from the ward, brought them down, logged them and had a very short time to put all the charts onto the trolley and get them back. She would grab a bundle of them and would turn around and put them on the trolley and while she was twisting, she injured the lower part of her back. She was given some painkillers by H.C. and she rang the physiotherapy department and made an appointment for her. She was never given manual handling training before the accident but was subsequently and had she been given that training, she might have been more aware of what to do.
2.4 The defendant did not call H.C. to give evidence who was the only witness but did call the highly respected engineer, Mr. Tony O’Keeffe who had a set of photographs. Mr. O’Keeffe gave evidence that the volume in weights being carried by the plaintiff were not excessive. This, of course, is not the plaintiff’s allegation. He agreed that the manual training regulations were mandatory and that it was a breach of statutory duty not to have such regulations.
2.5 It was argued by Ms. Marguerite Bolger, S.C., at the conclusion of the case that there was not sufficient evidence to show that the plaintiff had her accident or that it was caused or contributed to because of the failure of the defendants (which was admitted) to have proper training in manual handling.
2.6 I have observed the plaintiff, I believe that she is a witness who is inclined to tell the truth as best she can and that her recollection of the circumstances of the accident (which is not challenged) is correct. I also accept that had the plaintiff been trained in proper handling of weights and manoeuvring as is required under the statute, the accident as a matter of probability would not have occurred.
2.7 I therefore hold that it was negligent and a breach of statutory duty on the part of the defendants not to give the plaintiff this training and that this negligence was the principle cause of the accident and the injuries sustained therefrom.
2.8 The plaintiff is entitled to succeed in relation to that aspect of her case and I find there is no contributory negligence on the part of the plaintiff.
2.9 I will discuss the quantum of damages later in this judgment.
3. The Claim for Bullying and Harassment
3.1 I propose to analyse this claim firstly on the basis of the legal principles involved and then proceed to go through the various allegations in turn of “bullying and harassment” made by the plaintiff to assess whether there is liability in respect of them.
3.2 It is important to realise, of course, that there is no separate tort of “bullying and harassment”. The defendant as an employer of the plaintiff owes a duty of care not to expose their employees to injury and one of the sub-aspects of this maybe a question of bullying and harassment.
3.3 It is further important to realise that in this case, the plaintiff is not just complaining of “bullying”. She makes the case that there is breach of contract, bullying, harassment, discrimination and intimidation against her.
3.4 Fennelly J. stated in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. at para. [13] and following:-
“[13] Counsel for the defendant, accepted that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of ‘workplace bullying’ at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:-
‘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.’
[14] Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.5 In this case, of course, the essence of the plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in effect orchestrated or directed from the management of the defendant’s company or what is sometimes known as corporate bullying.
3.6 I have been referred to the helpful decision of Herbert J. in Sweeney v. Board of Management Ballinteer Community College (Unreported, High Court, 24th March, 2011), in which Herbert J. analysed a number of the instants which the plaintiff relied on in her claim for personal injuries in what she claimed was unlawful bullying and harassment of her by the school principal.
3.7 Some of the plaintiff’s complaints were upheld and others were not. At the outset, Herbert J. set out his view that there had an “escalating mutual distrust” between the plaintiff and the principal as disagreement followed disagreement. He found that:-
“the plaintiff came to believe that every action or omission on the part of Dr. C., whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.”
3.8 In that case, the analysis which I found most helpful, Herbert J. was critical of a number of the aspects of the plaintiff’s conduct but found certain behaviour amounted to bullying and stated:-
“In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.”
3.9 In this case, I came to the conclusion that the plaintiff did hold the same belief as was held by the plaintiff in the Sweeney case (above) i.e. that every reaction of the management of the defendants was directed against her and that even matters that were clearly set out for her benefit were in fact part of a grand design to do her down.
3.10 I was strengthened in that view by certain aspects of the medical evidence (which I will discuss further in this judgment).
3.11 To come to that general conclusion, however, is not to decide the case as the individual actions complained of by the plaintiff will have to be analysed, as was done by Herbert J., in the Sweeney case above, and a decision reached as to whether any of them individually and/or collectively in all the circumstances amounts to bullying and harassment bearing in mind the plaintiff’s other causes of action as pleaded.
3.12 In the United Kingdom, the Court of Appeal clarified the law in four joined stress and work cases and in Sutton v. Hatton [2002] 2 AR 1, the court placed considerable emphasis on the employees obligations to inform the employer of the nature of the difficulties and the fact that the difficulties are having an adverse effect on their health and Hale L.J. set out sixteen propositions for dealing with cases of bullying and harassment.
3.13 Laffoy J. in McGrath v. Trintech Technologies Limited [2005] I.R. 382, adopted these sixteen propositions stating that they are:-
“helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in Barber v. Somerset County Council case – that one must be mindful that every case will depend on its own facts.”
3.14 Furthermore as is clear in this case as the allegations relate to what I have described as corporate bullying in the main and as the history of the case indicates the plaintiff bringing numerous grievances to the attention of the management, the issues of the foreseeability and notification to the employers are of less significance here than in the Sutton v. Hatton case (above).
3.15 All in all, I find that the best summary of the questions to be addressed was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
4. The Plaintiff’s Work History
4.1 As stated the plaintiff whose is a married and separated mother commenced employment with the defendants in February 2003 initially as a part-time receptionist. She was at that time working also with the Society of St. Vincent DePaul.
4.2 During her work with the Society of St. Vincent DePaul, the plaintiff complained of bullying and harassment and work stress which was the subject of a separate set of High Court proceedings, heard by me immediately prior to the instant case. In those proceedings, the plaintiff was unsuccessful.
4.3 As some stage in the course of her employment, these defendants became aware of the fact that the plaintiff had suffered alleged stress and had a number of complaints against the Society of St. Vincent DePaul. This awareness culminated in these defendants affording some witnesses to her employers in a case taken by the plaintiff against the Society of St. Vincent DePaul before a Tribunal.
4.4 The plaintiff returned to Ireland from England with her husband whom she had married in 1965. She had three children.
4.5 In 1981 her marriage ended and her ex-husband lived in America and did not provide her with any material support.
4.6 Of relevance in these proceedings, her husband was sentenced to three years imprisonment at Portlaoise Prison for his part in the kidnapping of Mr. Don Tidey in 1983 and on his release in 1987 he immigrated to the United States.
4.7 The plaintiff formed another relationship which lasted for more than 20 years but her partner developed heart disease and died after a debilitating illness in 2008.
4.8 Having commenced work in the reception area, the plaintiff applied for and was given a post in the Record Department commencing in February 2004.
4.9 The plaintiff developed a number of grievances in the course of her work which will be analysed and she sustained the accident discussed above after which she was certified as being sick and subsequently due as she put it to her work stress situation, she again was certified as sick and has not returned to work since 2006.
5. The Plaintiff’s Grievances
(a) The Condition of the Records Department prior to the Plaintiff’s Appointment
5.1 I have considered all the evidence and all the submissions in this case and I have been afforded the assistance of a transcript of the seven day hearing being made available to me (and indeed to the plaintiff) by the good offices of the defendant. I will not attempt to summarise all the evidence but the parts which I believe to be relevant in relation to the plaintiff’s main allegations and grievances.
5.2 The plaintiff complains that whereas when she moved to the records department, the atmosphere was reasonable up to and including the time of her accident, that she was not made aware as a fellow employee, H.B. (who moved to the same department at the same time) was aware, that a significant human relations problem had existed in this department prior to the plaintiff joining it and that it was basically unsafe.
5.3 H.B. was indeed give a “letter of comfort” whereby she could use this letter to change back to any other department before she took up the post. This is because H.B. was aware of certain difficulties at the records department and the plaintiff was not so aware.
5.4 I am not persuaded, however, that the failure of the defendants to give a letter of comfort to the plaintiff was an example by them of bullying and harassment. H.B. was aware of problems in the department, which problems persisted and which problems required the defendant’s best practice manager, F.G., being placed in charge and remaining in charge as acting manager during the period of the plaintiff’s employment.
5.5 However, the fact that F.G. was in charge of the department did place the defendants on notice of what was going on there and gave them an obligation to be particularly stringent in relation to any further bullying.
(b) The hours of the plaintiff’s work
5.6 The plaintiff accepts that her original contract in Reception and indeed when she moved to records was as a temporary part time worker but that it was represented to her that she would in fact get many extra hours and be put in effect in a position as a full time employee.
5.7 This did not occur and was subject of considerable grievance procedures by the plaintiff but I accept the defendant’s contention that at all times, the plaintiff was employed under a contract which provided for a limited number of hours and that she was furnished from time to time with extra hours, and in particular in July 2004, she was granted full time hours by an agreement which specified that this was up to the end of the year. The plaintiff understood that in January 2005 when she went back to part time that she would take up hours of another employee who left.
5.8 In any event, the plaintiff agrees that she was working without difficulty up until sometime after her accident.
(c) The accident and its aftermath
5.9 The plaintiff suffered the accident as described above on 20th August, 2004. She went home and sent her son with an accident report form to be completed. H.C. who witnessed the accident apparently filled out an incident report form which did not specify any accidents such as that complained of by the plaintiff and then the plaintiff returned to work, she noticed the atmosphere had changed.
5.10 In particular, she says (and there is no evidence to contradict this) and I accept that on 29th September, H.C. scratched the plaintiff with her nails which incident the plaintiff reported to her trade union, SIPTU.
5.11 I accept that because of the difference of views between the plaintiff and H.C. in relation to the plaintiff’s accident and in particular H.C. not reporting the incident as an industrial accident (and apparently it was never reported to Health and Safety) and subsequently H.C. not signing the accident report form as it was proffered to her that H.C. who was the plaintiff’s superior was hostile to the plaintiff.
5.12 I also accept that the defendants who were aware of difficulties on the personnel side in the records department and who had their best practice manager, F.G., as acting manager therein were aware or ought to have been aware of this hostility and had notice of it and initially took no effective steps to deal with this and as a result of what occurred, the plaintiff suffered stress.
(d) The application for a permanent position
5.13 A permanent position was advertised internally in the hospital and I am persuaded by the evidence of Mr. Casey of SIPTU on behalf of the plaintiff that the proper procedure ought to have involved only internal candidates being selected from current employees of the hospital. In fact, the plaintiff applied for this position but was not appointed and instead external candidates were.
5.14 These appointments were irregular and contrary to agreed procedures between management and unions. I have not been given any justification for this breach of procedure other than the view of the plaintiff, which I accept, that it was because management were in some way of the view that the plaintiff was “trouble” and wished to do her down or not to see her attain a permanent position for which on the face of it she seemed entitled.
5.15 It is fair to say that the procedure that was adopted by the hospital was most unfortunate in that it led to increased tensions in the workplace, and in particular to the start of the plaintiff’s complaints of bullying and to most of what followed.
5.16 I have come to the conclusion that this amounted to corporate bullying and harassment and discrimination against the plaintiff and resulted in stress to her.
(e) The complaints against the plaintiff
5.17 In November 2004, complaints were made against the plaintiff by Ms. O’.P. and Ms. M.Q. in writing objecting to the conduct of the plaintiff towards these two persons who had applied for and obtained the position which the plaintiff had also applied for alleging, inter alia, that the plaintiff was ignoring them and being rude to them and carrying out conversations about them behind their back.
5.18 The plaintiff alleges that these complaints were in effect manufactured or false or were the product of management or in any event were untrue and part of the bullying against her.
5.19 In particular, the plaintiff objected to a reference in the complaints to the plaintiff allegedly talking about a burning of boats incident in Co. Kerry which was allegedly caused by the IRA.
5.20 It is not my function to analyse the strength or the truth otherwise of these complaints against the plaintiff.
5.21 I do, however, find that the complaints were not orchestrated by the management and came to the management in a manner which required the management of the hospital to investigate them.
5.22 The complaints originally were made in handwritten letters which have been opened to me. The complainants then attended management investigation on 14th December, 2004.
5.23 Subsequent to that meeting, a letter was sent to the plaintiff on “6th December, 2004” but which I accept this date is a typographical error and it should be 16th rather than 6th and although the plaintiff insists that the letter was written before the grievance meeting on 14th, I do not accept that as a fact.
5.24 This letter to the plaintiff from S.H. and F.G. states that:-
“I write pursuant to various complaints which have been received from individual staff members within the medical records department. These complaints clearly outline their concerns with regard to inappropriate behaviour, comments allegedly exhibited/made by yourself and also the issues which you have inappropriately raised with regard to internal recruitment process. Having reviewed all the details of the allegations thus far and having deemed the allegation to be severe in nature, we are now formally requesting you to attend an investigation meeting with a representative of your choice….
This meeting will take place with myself and (F.G.) in the hospital boardroom on Wednesday, 22nd December, 2004 at 11am…”
5.25 The plaintiff very understandably objected and objects to being summonsed to a meeting of complaints against her when the details of these complaints were not given to her.
5.26 Ultimately, the statements of the complainants made to the investigation meeting on 14th December, 2004, were furnished to the plaintiff’s representative. However, Mr. Casey sought copies of the original letters of complaint to management by the complainants. There was great confusion throughout the hearing as to what occurred to these letters and management maintained that they were given by the complainants to their trade union (also SIPTU) and were ultimately produced at a hearing.
5.27 If that is the case, the fact that the original complaints were in the hands of a colleague was not advised to Mr. Casey who was representing the plaintiff and I find that odd but in any event, I do not have to decide that issue of fact.
5.28 Ultimately, a meeting was held on 18th January, 2005, but this meeting was to discuss the plaintiff’s grievances in relation to her not being appointed to the full time position (though being the only internal candidate for it) and to her claim for loss of earnings as a result.
5.29 At this meeting, the plaintiff read out a prepared statement which was taken down by a note taker on behalf of management.
5.30 This statement was typed out and what purported to be the plaintiff’s statement was presented to the plaintiff for signature on 21st January, 2005.
5.31 As far as the plaintiff was concerned the statement she had asked to sign as her own did not reflect what she had said. In a point of fact she indicated that every paragraph in it was inaccurate. She took the advice of her trade union (and Mr. Casey supports her on this) who advised her not to sign the document. She refused to sign the document and in my opinion she was correct in taking that attitude. The statement had originally been presented to the plaintiff for signature on 20th January, 2005 but the plaintiff wanted an opportunity to compare it with her original document which was at home and indicated she would return the following day.
5.32 At the same time, a similar statement was proffered to another employee, H.B. H.B. also refused ultimately to sign her statement as being inaccurate.
5.33 On 21st January, 2005, the plaintiff wrote a letter to B.L. (the assistant hospital accountant/office manager) advising that she had been advised “not to engage in further dialogue” and stating “I believe it (statement) does not reflect accurately and wholly the information I imparted at the meeting held…18th January, 2005…Please contact Mr. Con Casey/SIPTU in order that this matter and correction to same can be facilitated”.
5.34 Following that not unreasonable action, the defendants proceeded to a most extraordinary and in my view unwarranted course of events.
5.35 At approximately 4pm on 21st, the plaintiff who was in the file section of the records department was approached by B.L. (the chair of the panel who had held the meeting) who asked the plaintiff why she was advised not to enter into any further dialogue to get the response from the plaintiff that they were to contact her union. The plaintiff was then told by S.H. that as it appeared that she was no longer willing to cooperate with the grievance panel or H.R. in order to have the grievances (which she herself had invoked) investigated that they were “left with no alternative” but to suspend her from active duty with immediate effect.
5.36 The plaintiff then stated and I accept that she was in effect manhandled from the premises by management and barred therefrom.
5.37 The defendants accept that the plaintiff was suspended (though with pay) and denied that she was “barred” but I accept the plaintiff’s evidence in this matter that as far as she was concerned her suspension and removal from the premises amounted to a barring therefrom and this was communicated to her. It is illustrative that the plaintiff’s fellow employee, H.B., who also declined to sign the grievance procedure statement was not suspended or disciplined or removed from the premises.
5.38 When asked by the court in respect of this discrepancy, the hospital manager, P.G. stated that the plaintiff was the person who was suspended and removed from the premises rather than H.B. because the plaintiff was the one who had raised the grievance!
5.39 I find that the suspension of the plaintiff because she quite properly refused to sign a statement which she found inaccurate and quite properly referred the management to her trade union for clarification and how the matter could be progressed was wrong, a breach of contract and a example of bully and harassment against the plaintiff.
5.40 It is clear and is stated by the manager of the defendant company that the plaintiff was singled out for discriminatory treatment because it was she who had raised the grievance and she who refused to sign.
5.41 The circumstances of the plaintiff’s removal from the premises may have constituted an assault though I am not persuaded on the balance of probabilities that a significant assault took place.
5.42 Though the plaintiff continued to work after this incident when her suspension was raised following trade union protest and the threat of industrial action, I do accept that as a result of this incident the plaintiff has suffered an injury and an actionable wrong which may be classified as breach of contract, discrimination and bullying and harassment.
5.43 Given my other findings of fact, I do not see the suspension of the plaintiff in the manner that it was done and for the reasons that have been stated on behalf of the defendant can be justified as not being bullying due to it being just one single isolated incident.
(f) Post Suspension Grievance Procedures
5.44 The plaintiff finds great fault with almost each of the procedures the defendant’s sought to put in place to resolve her subsequent grievances.
5.45 With regard to most of the matters raised, I do not accept the plaintiff’s contention. I do accept, however, that the defendants were at this stage looking at the plaintiff as being a “trouble maker” and acted in a number of ways unfairly towards her.
5.46 Subsequent to her suspension and then her reinstatement after trade union agitation, the defendants did put in place a number of efforts at investigation and also potentially mediation but these ultimately came to nothing.
5.47 The plaintiff’s trade union representative, Mr. Casey gave opinion that the plaintiff was targeted because of her membership of SIPTU, I do not accept that as being correct and indeed apart from Mr. Casey’s opinion to that effect (which at best of doubtful evidentially) there is no evidence to support the allegation. Indeed there is every reason to suppose that the defendants were well aware that their hospital in Tralee was a trade union employer and they dealt with and liaised with the SIPTU representatives on numerous occasions.
(g) The Rights Commissioner
5.48 The plaintiff’s grievances were referred to the Rights Commissioner pursuant to the Labour Relations Commission and he reported July 2005 in relation to the appointment of five candidates and in relation to the plaintiff’s grievances as to her hours of work.
5.49 The Rights Commissioner recommended that the plaintiff’s contract be extended to 20 hours per week with additional hours to be made available to her and further that the defendants set out in writing a recruitment policy which would be followed for future.
5.50 The plaintiff then appealed the recommendations to the Labour Court in relation to her number of hours. This appeal went against the plaintiff.
(h) The Investigation by Mr. Tom Wall of the Plaintiff’s Bullying Complaints
5.51 It was agreed that the plaintiff’s complaint of bullying be referred to Mr. Tom Wall and he investigated and did not uphold the plaintiff’s grievances except in relation to the allegation that the plaintiff was wrongly suspended and the manner of the suspension.
5.52 Mr. Wall, however, viewed that incident as being an isolated one and that accordingly he did not fulfil the definitions of bullying.
5.53 The report of Mr. Wall was then appealed by the plaintiff to the Rights Commissioner under the Industrial Relations Act. The plaintiff complained that Mr. Wall did not hear evidence from a number of witnesses that she had available to her but rather took evidence on behalf of the plaintiff from herself only.
5.54 The Rights Commissioner decided that Mr. Wall should reconvene his hearing to deal with the issue of the witnesses but there was apparently no change of mind from Mr. Wall.
5.55 After this impasse the issue of the plaintiff’s bullying complaints was by agreement of the parties then referred to another independent third party “Polaris Human Resources” (Polaris) and it was agreed between the parties that Polaris were to investigate without any sight of any previous decisions on this matter.
5.56 Before the Polaris investigation could proceed, J.K. (who had been appointed Human Relations Manager with the defendant in March 2006) wrote to Polaris by email with a copy to a representative of IBEC advising Polaris that “the hospital this morning received correspondence from Patrick Mann and Company solicitors informing us that they are now issuing a High Court personal injuries summons on behalf of Ms. Margaret Kelly.” The plaintiff took the view that that email breached the agreement that Polaris should enter into its investigations without any knowledge of previous developments.
5.57 J.K. in his evidence indicated that he was under the impression that everything should be held in abeyance until Polaris had conducted its investigation and he was prepared to accept this but that he found the proceedings were being initiated and he was concerned that the plaintiff’s issues were being carried on in two different directions at the same time. He stated it was unfair to the hospital that they would have to defend the issue in the High Court at the time when the third recommend that they carry out an investigation.
5.58 In response to questions from the court, J.K. was asked why he wrote to Polaris rather than to the plaintiff or to her union representative or caused a letter to be written to her solicitor if he was annoyed with the plaintiff initiating High Court proceedings. J.K. denied that he was telling Polaris that they were to cease their investigations. He denied that he intended to influence Polaris in their investigations.
5.59 The personal injuries summons dated 28th July, 2006, and I believe it was prudently issued at the time in order to prevent any question of the statute of limitations arising as her grievances commenced in August 2004 with her accident.
5.60 I hold that the sending of an email to Polaris at the time that Polaris would conduct an investigation while not technically a breach of any agreement was clearly intended to be prejudicial against the plaintiff and it was an example of the defendants through J.K. taking a bullying attitude to the plaintiff and it contributed to the stress the plaintiff was suffering.
(i) Mediation
5.61 After J.K’s appointment, I accept his evidence that he came to consider the issue of mediation between the parties. I have had the benefit of observing J.K. giving his evidence and I think that he was a “no nonsense” type of individual. There was a conciliation meeting between the parties organised by the LRC shortly after taking up his position and while new to his job and still on probation as he indicated it was alleged by the plaintiff and her trade union representative, Mr. Casey and also by another employee, E.C., who was a shop steward on behalf of SIPTU that at this meeting J.K. made what were described as threatening gestures towards the plaintiff (and the others on the side of the trade union) by way of pointing his finger in a gun like manner and saying words to the effect that he was the new sheriff in town to clean it out. J.K. agrees that he may have said something about cowboys or Indians but denies strongly that he made any threatening gestures or used his fingers to mimic gun shots.
5.62 I accept J.K’s denial though the witnesses from the plaintiff’s side of the meeting did criticise him for being aggressive. I think that that was probably a conclusion brought about by the tensions between the parties and that J.K. was in fact trying to be light hearted when referring to himself as the “new sheriff in town” or words to that effect. I do not think that constitutes bullying or harassment.
5.63 I do not believe that J.K. when he was still on “probation” would have endangered his position with his employers by aggressively attempting to shoot the plaintiff.
5.64 The plaintiff was, as I see it, concerned that references to guns being pointed were particularly directed against her given her ex-husband’s conviction for terrorism related charges. J.K. may have been aware of this at the time (though he does not believe he was) but I do not accept that his comments or attitude was at this stage motivated by a wish to intimidate the plaintiff by even obliquely referring to her husband’s activities.
(j) A Meeting in the Brandon Hotel
5.65 As part of his mediation attempts, J.K. ultimately met with the plaintiff in the Brandon Hotel in December 2006.
5.66 The plaintiff had gone on sick leave in September 2006 (from which she has not yet returned).
5.67 J.K. states that he was attempting by this meeting to provide “reasonable support” in helping the plaintiff get back to work and trying to resolve the problems and ascertaining what the plaintiff’s concerns were at this stage.
5.68 J.K. identified the plaintiff’s concerns as being her good name in relation to the allegations made against her, a transfer from medical records where she felt that the atmosphere was hostile to her, an opportunity to come back to work at reasonable hours.
5.69 There is a dispute as to where they met on the hotel premises. I accept the plaintiff’s recollection on this matter which is indeed supported by the contemporaneous notes from J.K.
5.70 I do not, however, believe much turns upon that discrepancy.
5.71 Further disputes have arisen between the parties as to what was or was not said in relation to the plaintiff being afforded the service or support of a counsellor. At that stage, the plaintiff was engaging with a counsellor for her stress but it is clear that that counsellor was not known to J.K. who recommended an alternative one.
5.72 Further at the meeting, the plaintiff referred to one of her grievances in relation to her situation in medical records that she did not feel safe there as she believed that bullets had been delivered to the unit in an envelope. The plaintiff contends that J.K. indicated that he had seen these bullets and these were the size of a top of a biro. J.K. indicated, however, that he did not say that he had seen any bullets (because he had not seen any) but may well have said that what he had seen was (as he believes to be the case) the top of a biro in a envelope.
5.73 Whether bullets were or were not delivered to the unit is not necessarily an issue that I have to resolve but the plaintiff and Mr. Casey both believed that management agreed that such bullets were delivered. On balance, I do not believe that real bullets were actually delivered to the hospital in an envelope as a much greater fuss would have had to have been made of the affair including presumably the immediate involvement of the Garda Síochána.
5.74 I think what is important from the plaintiff’s point of view, and which I accept, that she was advised by fellow employees that bullets had been delivered to the department and that either it was being suggested that she was responsible for sending them (with reference to possible connections with the IRA) or that generally the workplace was unsafe.
5.75 I hold that persons in the Record Departments were making reference to bullets in a jocular way which did not amount to bullying and though the plaintiff was upset by this, I view the incident as workplace banter rather than bullying.
5.76 In any event, the meeting at the Brandon Hotel at Christmas 2006, ended with J.K. indicating that he would try to get resolution of the plaintiff’s request to transfer from the Record Department and deal with the other matters. Suffice to say that the plaintiff was very annoyed that J.K. did not respond to her by the first week in January and that further deterioration in the relationship between the parties occurred. I accept, however, that the plaintiff misunderstood what J.K. had said and that what he conveyed was that he would get back to the plaintiff on his return to work sometime in January rather than in the first week thereof.
5.77 I do not believe that the defendants have anything to answer in relation to that meeting.
(k) The Issue of the Plaintiff Allegedly Forcibly Detained in the Hospital
5.78 The plaintiff alleges that F.G., the best practice manager of the hospital, forcibly prevented the plaintiff from leaving the hospital on 23rd January, 2006.
5.79 I have no doubt that the plaintiff believes now that this is the case but I think that her recollection is incorrect.
5.80 F.G. states that on that day, he had a meeting with the plaintiff and O.P. and after the meeting they went to the medical records department and that F.G. asked that plaintiff to clarify a few points from the meeting and that the plaintiff did not want to stay but wanted to go for her lunch and she was asked again would she clarify some points and then “out of the blue” the plaintiff made an allegation that she was being held against her will and that she rang Mr. Casey, her trade union representative and made the same allegation and would not withdraw it even though F.G. denied it and asked her to do so.
5.81 I have been advised by the witnesses as to the layout of the area where the plaintiff alleges that this incident occurred and have no doubt but that the plaintiff is mistaken in her recollection and she was not psychically restrained from leaving on that occasion.
6. The General Position
6.1 I have come to the conclusion that the defendant’s conduct is to be strongly criticised on a number of matters i.e. the behaviour of H.C. towards the plaintiff immediately after the accident, the alteration of normal work practices to open the permanent position to “outside candidates” to the detriment of the plaintiff, the suspension and manhandling the plaintiff out of the hospital after the refusal to sign the statement the interference with the mediation procedures of Polaris, by the defendant.
6.2 I have also come to the conclusion that the plaintiff believes that virtually every step taken by the defendants was an attempt to bully, harass and intimidate her. I have not found that that is the case.
6.3 I believe that the plaintiff’s view is coloured by her personality and the fact that she was clearly a person subject to stress but the defendants were or are ought to have been aware of this fact from a very early stage as they knew her history with St. Vincent DePaul and they knew also of her husband’s career. I believe that accordingly, the defendants must, subject to any defences that they have, be prima facie liable for the above mentioned bullying and harassment of the plaintiff insofar as the plaintiff has suffered an actionable injury as a result.
7. The Defendant’s Defences
7.1 The defendants have in their full defence pleaded contributory negligence against the plaintiff and in particular have criticised her for failing to involve herself in the defendant’s grievance procedure and to engage with them.
7.2 I do not believe that the plaintiff failed to engage in the grievance procedures. The plaintiff clearly did engage with the grievance procedure. She did not accept the results of a number of the hearings/inquiries as she was entitled not to accept but her engagement was at a very high level indeed.
7.3 The fact that the defendants may or may not have good reason to be critical of the plaintiff for not accepting various results is not in my view a sustainable allegation of contributory negligence against the plaintiff. Contributory negligence is to be assessed in degrees of fault for the harm that is occurred under the Civil Liability Act and I do not believe that the defendant has made out a case in those terms.
7.4 The plaintiff is also criticised for failing to respond to the defendant’s offer to transfer and failing to mitigate her loss. I believe that at the time the transfer offer was made, after the Brandon Hotel meeting before Christmas 2006, that the relationship between the parties had entirely broken down and I do not believe the plaintiff should be criticised by way of contributory negligence for that or indeed for failing to mitigate her loss as she was already engaged in counselling at the time.
7.5 The defendant’s contend that the plaintiff cannot proceed with a number of the grievances due to findings made by the LRC and others. It was submitted by Ms. Bolger, on behalf of the defendants that the court not in effect interfere with the various decisions of the LRC and of Mr. Wall and should take judicial notice or indeed was estopped because of them.
7.6 I do not think that such a contention is valid.
7.7 The LRC is a body with a mandate to inquire into various industrial disputes and can make findings in accordance with its limited functions only.
7.8 This is a civil case claiming damages for bullying and harassment, which the LRC was not inquiring into at the time. There is no question of estoppel or res judicata arising.
7.9 Similarly the finding of Mr. Wall which decided that the suspension of the plaintiff though regrettable did not amount to bullying because it was one single instant and did not meet the definition thereof, is in no way binding upon this Court.
7.10 The finding of Mr. Wall does not meet any of the definitions of res judicata, it is not indeed a final determination because the parties agreed that his determination should be set aside in a subsequent investigation being undertaken by Polaris and second of all, it is not suggested when the parties referred the matter to him that Mr. Wall in any way should be able to make a finding which would prevent the parties having access to the High Court.
7.11 Furthermore, the issue of res judicata is not raised in the defendant’s comprehensive defence and the defendants cannot succeed in answering the plaintiff’s claim by raising that issue now.
8. Conclusion on Liability
8.1 In my view, the plaintiff is entitled to succeed in the claim for bullying and harassment and breach of contract for other reasons and on the basis that I have described above.
9. Quantum
(a) The Back Issue
9.1 I am briefed with the report from the plaintiff’s G.P., Dr. Brian Kelly and also the reports supplied by the defendants from Dr. Michael Pegum who gave evidence and Mr. Gardezi.
9.2 Dr. Kelly indicated that the plaintiff suffered an injury and in August 2004 and remained symptomatic for some four weeks despite treatment for analgesia for physiotherapy and was certified as unfit up to 15th September, 2004. She was again seen with a “further” back injury and was advised to refrain from further work for one week. This is clarified by the evidence of the plaintiff and indeed by Dr. Pegum which I accept as not being a separate incident but rather of a pre-existing accident related injury. The plaintiff had suffered an injury to her back in 1998 which the plaintiff says and I accept lasted for a few weeks only and subsequently thereto she had made a full recovery. On that occasion, Mr. Gardezi found spasm in her muscles.
9.3 Up to the accident in August 2004, the plaintiff was and I accept a very active person who went swimming everyday and dancing once a fortnight and did gardening and generally fully participated in any psychical work. She was given an injection of medication by Dr. Kelly and had to take off some further time later. She had some benefit from physiotherapy.
9.4 On examination by Dr. Pegum in May 2011 (six years and nine months post accident), the plaintiff complained of pain spreading from her left buttock to her outer side of her thigh and lower leg which comes from stooping or lifting which she tries to avoid and is brought on by driving or walking for ten minutes or indeed by crossing her left leg over her right when sitting.
9.5 Dr. Pegum was of the view that the plaintiff had a pre-accident degenerative disease consistent with her age which she accepts were made rendered symptomatic prematurely. Dr. Pegum is of the view that were it not for this accident these symptoms would likely to have arisen spontaneously within a number of years.
9.6 I came to the view that the plaintiff was able to carry out a very active life from 1998 when she first had back pain up to the accident and were it not for this accident, she is likely to have been able to work and carry on a normal lifestyle certainly up to retirement stage. Dr. Pegum is of the opinion that the plaintiff could have continued working as long as she did not undertake any heavy lifting or prolong stooping of the back was the only problem.
9.7 It is certainly true that the plaintiff, the absence of her work has been certified in relation to stress in recent times rather than her back. I think, however, that the nature of the plaintiff’s work in the records department was such that it involved standing around for long periods of time and lifting and manoeuvring and shifting files from one place to another and this regime was not very conducive to her back condition and indeed was the source of many of her requests to change work to another station.
9.8 I hold that the plaintiff is likely to go through the rest of her life with the knowledge of a back is less than perfect and which will come against her. It is quite possible were it not for this accident that she would have had some flair up of symptoms at some stage and in those circumstances doing the best that I can I would assess in respect of the plaintiff’s back complaint, damages to include some damages for limitation for work availability at a modest level in the sum of €30,000.
(b) The Bullying Issue
9.9 The plaintiff has an actionable case for damages for bullying, harassment and discrimination arising out of some but by no means all of her complaints. She has sustained an injury rather than acceptable stress to meet the test of Clarke J. in Maher v. Jabil (above).
9.10 I have been furnished with the medical report of Dr. Brian Kelly dated 11th November, 2005, the psychological report of Dr. Jean Lynch of the Anti-Bullying and Research Resource Centre of Trinity College Dublin, Dr. Aidan O’Gara and John Casey, Occupational Health officers on behalf of the defendant, Dr. John Gallagher, Consultant Occupational Physician who supplied a number of reports on behalf of the defendants and Dr. Paul O’Connell, Consultant Forensic Psychiatrist who reported on 11th April, 2007 and also gave evidence on behalf of the defendants.
9.11 I found all of the above very helpful and of great assistance. In particular, I found of assistance the evidence of Dr. O’Connell in relation to the personality of the plaintiff. I make this point notwithstanding the forensic cross examination of Dr. O’Connell by the plaintiff which would have done justice to the most proficient practitioner in the round hall! The plaintiff indeed got a number of admissions from Dr. O’Connell that a number of his conclusions were based upon false assumptions and in particular Dr. O’Connell’s conclusions that the plaintiff would have lived in the United Kingdom in the 1970s with her politically active husband which experience would have been stressful and which she survived, was based upon a false assumption.
9.12 Dr. O’Connell was also incorrect in the date of the plaintiff’s marriage and the number of her children.
9.13 However, Dr. O’Connell does state and I accept:-
“It is possible that Ms. Kelly has a paranoid personality which would confer an increased liability to misconstrue a hostile intent to the comment, behaviour or attitudes of others. It would be useful to have access to independent corroborating information such as her primary care records…”
9.14 I believe that any assessment of the plaintiff must conclude that the plaintiff has indeed come to the view wrongly, that all the actions of the defendants were motivated by some malice against her.
9.15 Notwithstanding that view, however, given the findings I have made previously, it is clear that the defendants, at management level were motivated by hostility to the plaintiff stemming initially from the time of her accident.
9.16 This motivation continued until the plaintiff was frogmarched off the premises which was by any scale of thing an extraordinary insult to her.
9.17 The attitude of the defendants may have been due to exasperation which was understandable but was not (in the manner that I have found above) justified.
9.18 It is correct that the plaintiff did work on after being suspended and removed from the defendant’s premises.
9.19 In his examination of the plaintiff, Dr. O’Connell was impressed by how depressed the plaintiff was and indicated that as far as he was concerned, the treatment she was undertaking was not suitable and she was not being given proper antidepressants.
9.20 In his evidence, Dr. O’Connell indicated that having observed the plaintiff conducting her case, he saw somebody who did not appear to be depressed and indicated that it was possible that the adrenaline of the court proceedings carried her on but in any event her examination in November and her upset arose after a number of very stressful instances in her life including the death after illness of her partner and the death of a number of close members of her family.
9.21 In all the circumstances, it is difficult to untangle the different cause of factors in the plaintiff’s present make up. The defendants must indeed take the plaintiff as they find her but they are not responsible for an underlying condition which they did not cause. They are, of course, responsible for the consequences of their actions which may well have had an effect upon the plaintiff which was greater than it would have been on somebody else.
9.22 In addition, of course, the depressive nature of the deaths in the plaintiff’s family and her partner must be extracted from the equation.
9.23 Mr. O’Connell in his conclusions states:-
“In my opinion, the symptoms which Ms. Kelly complains of are essentially depressive in character and grounded in multiple bereavement. There are a number of alternative causes for these symptoms that are independent of the alleged harassment and bullying at work. It is a matter for the court to determine the facts of the allegations. If the allegations are viewed as wholly or partly true there may have been a synergistic effect leading to a worsening of her condition. In addition there may have a complex interaction between Ms. Kelly, her depression, her behaviour and her perception of the behaviour of others that led to a mutually reinforcing negative cycle that corroded workplace relationships…”
9.24 I accept that analysis.
9.25 Bearing in mind Dr. O’Connell’s professional criticism of his colleagues in the psychological profession, I also accept the conclusion of Dr. Jean Lynch from Trinity when she states:-
“The physiological, psychological and behavioural problems that Ms. Kelly suffers are consistent with those well documented in the literature on stress. This has resulted in heightened levels of anger and anxiety, moderate self esteem, extremely severe levels of somatic symptoms, insomnia/anxiety and social dysfunction, mild depressive symptoms and severe levels of intrusive thoughts in behaviours.”
9.26 Accordingly, I have come to the view that the plaintiff’s acute depressive symptoms are not related to the bullying but the other symptoms are related. I believe that as the trust between the plaintiff and the defendants, has in my view irretrievably broken down, that the plaintiff will not be likely to return to work and that fair award of damages for the severe distress and insult she has suffered to the wrongs attributed to the defendant would be to include past and future general damages to a sum of €60,000.
10. Conclusion
10.1 From the foregoing it follows that the appropriate order to make is a decree in the sum of €90,000 to which the plaintiff would be entitled, on the face of it, to her expenses and outlay.
Glynn v Minister for Justice, Equality and Law Reform
[2014] IEHC 133,JUDGMENT of Kearns P. delivered on the 21st of March, 2014
The plaintiff is a married woman from Faha, Caher in Co. Clare who was born on the 11th May, 1962. Her husband is a farmer and they have three children. Since 1979 she has been employed as a civil servant by the defendants herein performing clerical duties at Gort Garda Station in Co. Galway. She claims damages in these proceedings arising from events which occurred during the month of May, 2005 when she was required by Superintendent Mockler (hereafter “Supt. Mockler”) to complete the monthly accounts for Gort Garda Station in the District Office of the station. The plaintiff contends that over a period of four days she suffered significant stress as a result of being hounded and harassed by Supt. Mockler in relation to the need to complete the task quickly and in relation to an issue of an individual cheque which Supt. Mockler had drawn in relation to his expenses.
THE PLAINTIFF’S CASE
The plaintiff, both in her legal proceedings and in her evidence, described how in 1996 major renovation works were being undertaken in Gort Garda Station which necessitated her performing her clerical duties in a portacabin adjacent to the main building. She was working there with Garda Denis Callaghy with whom she did not get on. She had to pass Garda Callaghy to get in and out of her seat given that they both sat at one long desk and she could only leave if he moved. Conditions were difficult and made worse (according to the plaintiff) because Garda Callaghy would not permit windows to be opened in the summer months and there was no proper heat in winter. She felt Garda Callaghy was constantly checking up on her in relation to her clerical duties and felt Supt. Mockler was blaming her for documents going astray in the office and for disseminating information about colleagues to other members of the garda station in an indiscreet manner.
She told the Court that she felt very stressed by these circumstances and took sick leave from the 6th November, 1996, which continued until the 1st May, 1997. She went to see her general practitioner, Dr. Piggott, who certified her as unfit for work during that period before she resumed duty on a three-day week basis in May, 1997.
On a date which the plaintiff placed in December, 1996 she met with Supt. Mockler in Glynn’s Hotel in Gort. The purpose of the meeting was to discuss her workplace issues. The plaintiff did not dispute but that she chose the location for this meeting which took place in a small room adjacent to the ballroom and which lasted five hours. She felt the length of this meeting was unfair, that there was no lunch break, and she left feeling ‘worse’ than she did before the meeting. She told the Court that Supt. Mockler said he was aware of a problem between the plaintiff and Garda Callaghy and asked her to sort things out directly with Garda Callaghy. The plaintiff said she could not do this. According to the plaintiff, Supt. Mockler told her she “had had it good and from now on it would get tougher”.
Thereafter, in January, 1997 Supt. Mockler rang her home on three occasions in one day. She felt this was harassment as she was absent from the wokplace on certified sick leave. On the first occasion she put down the phone and declined to speak to him. On the second occasion her husband took the call and said she was “out of the house”. On the third occasion, when Supt. Mockler asked another officer to call on his behalf and to transfer the call to him, she went to the phone, but the conversation, like the conversation which had taken place in Glynn’s Hotel, was unproductive, and the plaintiff felt intimidated and fearful by reason of these multiple calls.
When she went to Dr. Piggott, her general practitioner, towards the end of January, 1997, he rang Supt. Mockler at her prompting and requested that he desist from phoning the plaintiff because the calls had made her anxious.
Following her return to work, the plaintiff gave evidence that her desk had been moved to the store in the garda station and had to insist on its being returned to her office. She went on maternity leave in October, 1997 until March, 1998 and on her return was switched to the sergeant’s office where she was no longer working with Garda Callaghy and her workplace difficulties and stress ceased.
In 2004 she applied for a promotion to the position of Finance Officer and was successful. However, Garda Callaghy continued to perform the finance duties and she was advised she could not actually take up the position until either Garda Callaghy retired or left.
At this point it should be emphasised that, while a considerable amount of time was taken up during the court hearing (which lasted some five days) in trawling through this period of the plaintiff’s discontent about her workplace, it does not of itself form any part of the plaintiff’s claim for damages. Following her return to work in March, 1998 it is accepted on behalf of the plaintiff that she suffered no further significant problems until May, 2005. However, the events of 1996/1997 were the subject matter of extensive evidence on the basis that the events which followed in 2005 effectively triggered the feelings of being stressed and bullied which she claimed she had had to endure some eight years previously.
It is common case on the 9th May, 2005 she was instructed to commence the duties of finance officer in circumstances where Garda Callaghy was out of the station. She had no advance warning of this and was required to prepare and complete the monthly accounts for Gort Garda Station on Garda Callaghy’s computer which she could not readily access. It also involved a return to the district office where she had previously worked with Garda Callaghy notwithstanding that her own computer, with which she was familiar, was located in the sergeant’s office of the station.
In those circumstances, she told the Court she had to send for a disc from Loughrea to enable her complete the work properly. She maintains that she worked on the accounts over a period of four days in circumstances of considerable stress and difficulty. This involved transferring all records and accounts for the three previous months from a document known as the “red book” in order to enable her move on to the April accounts.
While completing those accounts in the week commencing the 9th May, 2005, her attention was drawn to a cheque for expenses drawn by Supt. Mockler in his own favour which had been inserted in the records on a day prior to the date upon which the station cheque was sent to Killarney for reimbursement. This was other than in accordance with the practice in the station and the plaintiff took up the matter with the accountant in Garda Headquarters to seek guidance on what she should do with the cheque. According to the plaintiff, Supt. Mockler became angry with her when she informed him of the course of action she had taken. She gave evidence that Supt. Mockler said she was making a “big deal out of nothing” and that he “threw the cheque at her” across the table in his office. She alleges that he said to her that her “friend”, Galway-based Chief Superintendent Monaghan (to whom she had made certain representations before returning to work in 1997), was “gone now” and any assurances he might have given her about her working conditions were gone with him. The plaintiff claimed that she was told by Supt. Mockler that if she didn’t do what he said, he would take her position from her.
The plaintiff was due to take a days leave on Friday, the 13th May, 2005, but felt so unwell arising from the matters she described that she had to remain in bed. She consulted her general practitioner on the 16th May, 2005, when she was prescribed medication and declared unfit to return to work. She told the Court she was suffering migraine-type headaches, panic attacks, palpitations and low self esteem.
She was referred by her G.P. to Dr. Michael Corry, who saw her in May, 2005. He did not feel that a return to work at this time was in the plaintiff’s interest, and she subsequently attended the Anti-Bullying Research and Resource Centre at Trinity College in Dublin where she was assessed by Dr. Lynch.
After six months absence from work the plaintiff was put on half pay and was taken off the payroll altogether with effect from the 1st April, 2006. However, the plaintiff returned to work in July, 2006 at a time when Supt. Mockler had retired from Gort Garda Station. She maintained in evidence that she had worked contentedly there ever since.
Paragraph 24 of the defendant’s notice for particulars herein dated the 2nd April, 2008, specifically enquired if the plaintiff had suffered from any psychological condition prior to the events complained of in the proceedings and, if so, to furnish full and detailed particulars in relation to same. This request was met by the reply “no”. Neither in the course of her direct evidence, nor in the course of her various consultations with her medical advisors, did the plaintiff advert to relevant prior psychological history which only emerged during the Court hearing when the plaintiff’s G.P. records were opened and put to the plaintiff in cross-examination. In May, 1995 the plaintiff had been noted by Dr. Piggott to be “down, irritable and not coping” and she was placed on Toframil, initially at a low dosage but one which was stepped up in June, 1995. In July, 1995 she had been prescribed Prozac in circumstances where she was complaining that her mood was down and that she had headaches. She was continued on Prozac in August, 1995 when she remained anxious though back at work but was complaining of stress. In November, 1995 she was placed on another anti-depressant, Seroxat (20 one nocte).
In cross-examination she conceded she was having some difficulties with depression for which she was prescribed medication in advance of the matters complained of. She accepted that in 1996 she had not filed any complaint of bullying. She had contacted Ms. Pamela Holland in the Employment Assistance Services of The Department of Justice in 1996. She accepted she had not complained to her of being bullied because she was afraid of being overheard. There were a considerable number of conversations with Ms. Holland who arranged to meet her at a particular café outside Gort in 1997. Although Ms. Holland drove down from Dublin for this meeting she accepted she had not turned up and gave no reason for her absence.
It was put to her that she was angry because she was receiving less pay than Garda Callaghy for work of equal value. In this regard she admitted she supported a case brought by her union on the issue of equal pay and felt she was perfectly entitled to do so. Asked why she had lodged no formal complaint, she stated it was because Supt. Mockler told her she would not have a chance if she complained.
It was put to her that she specified the location for their meeting in December, 1996 and that he had offered her support. It was put to her that the word “bullying” had never been raised by her in that conversation, but the plaintiff maintained that the meeting was unfair and made her situation worse than it had been before. While out on sick leave she had telephoned Chief Superintendent Monaghan to tell him about her workplace difficulties and he had assured that she would never be put in this situation again.
In relation to the events of May, 2005 it was put to her that Garda Callaghy had in fact given her his password for the computer and that all of the work for the April accounts had been done. It was further put to her that there was no rule or regulation that the cheque to the accountant’s office in Killarney had to be the first cheque of the month, but she maintained it was the practice. She felt perfectly entitled to seek assistance and guidance from Garda Headquarters. While the term “irregular payment” had been raised by her in her pleadings, she accepted that there was nothing untoward in what Supt. Mockler had done. It was put to her that far from bullying or harassing her, Supt. Mockler during that week, firstly, had met her on Monday and asked her to complete the accounts, and was then preparing for a murder crime conference and actually dealing with a murder investigation. The plaintiff accepted that Supt. Mockler had other duties but where there had been a departure in the normal practice for making up the accounts she felt she was entitled to raise it with Supt. Mockler and that he had raised his voice to her and treated her badly. She agreed however that, when she asked him to do so, Supt. Mockler shortened her working hours by 30 minutes every day, but said that this was on condition that she work through part of the lunch period instead.
Dr. Lynch gave evidence of meeting with the plaintiff in November 2005 and June, 2012. The plaintiff’s complaints to her were consistent with the evidence the plaintiff had given. Various tests indicated that the plaintiff lacked self esteem and self confidence and was showing mild signs of depression.
She accepted that bullying often has a significant subjective component and accepted that she had been misled on a prior occasion in this regard by a former patient. She accepted she had not been told of any previous history of either depression or of the plaintiff being placed on medication for this condition. She accepted that a patient’s past history was extremely important. Without it, psychological tests could be skewed.
The plaintiff’s husband, Brian Glynn gave evidence that the plaintiff was very upset about her situation at work. In particular, after the visit to meet Superintendent Mockler in Glynn’s Hotel in December, 1996 she was very upset and was crying. He confirmed that three telephone calls had taken place on a particular day and that he had taken one of them.
Dr. Raymond Piggott is the plaintiff’s general practitioner and he stated that the plaintiff had been his patient since 1988. He confirmed that his reports for the purpose of the court case did not include any reference to the plaintiff’s prior medications for depression. He accepted this was an error on his part due to the transfer of his records in the practice from paper to computer in or around that time. He stated that the initial prescriptions were for premenstrual tension, but accepted that the Prozac and Seroxat were to deal with problems of depression. He accepted that there were other difficulties in the plaintiff’s life in that her nephew drowned in December, 1996 and her father died in October, 1995.
His notes from January, 1997 indicated that the plaintiff was suffering continuous stress at work. His notes confirmed his consultation with the plaintiff in January, 1997 when she described a number of phone calls which Supt. Mockler had made to the house. Having regard to her degree of stress and anxiety, he telephoned Supt. Mockler while the plaintiff was with him to request that he desist from making these calls. He said that Supt. Mockler’s response was to say that he was “appalled” that things had come to this. However, he believed the plaintiff felt intimidated by Supt. Mockler and that he had no option but to call. He referred the plaintiff to Dr. Deirdre O’Donnell for further advice and counselling. He confirmed that the plaintiff returned to work in May, 1997 and was out on maternity leave from October, 1997.
Her symptoms of stress were again evident in May, 2005 in the aftermath of the episode in relation to the accounts. She complained of panicking, chest pain and palpitations, hypervigilence and loss of short term memory. He referred the plaintiff at that stage to Dr. Michael Corry. In August, 2005 he received a letter from Supt. Mockler asking if he (Dr. Piggott) could to anything to help in resolving the problem, but as he did not feel comfortable in replying to this letter he left it to Dr. Corry to do so.
Dr. Deirdre O’Donnell gave evidence of evaluating the plaintiff in early 1997 and recalled her as being extremely distressed and anxious. Her symptoms were in line with the kind of complaints typical of bullying and harassment. She discharged her from her care in May, 1997. She accepted her further meeting with the plaintiff in 2010 was for the purpose of the present litigation.
Dr. McInerney is a consultant psychiatrist who assessed the plaintiff in 2010. Dr. McInerney believed the plaintiff had suffered an upset in 1996/1997 but the symptoms in 2005 were more severe and more intense. She was also suffering from anticipatory anxiety, part of which was undoubtedly due to the upcoming legal action. She believed she was suffering from an adjustment disorder, rather than post traumatic stress syndrome. She accepted in cross-examination that the plaintiff clearly had life stressors before the events in 1996/1997, but the events of that period made her more vulnerable to further stress and upset in 2005.
THE DEFENCE CASE
The defence case commenced with the evidence of Garda Callaghy. He worked with the plaintiff from 1994. He believed the plaintiff had issues about the fact that he was on a higher rate as a garda because she was a civilian. He accepted that working conditions in the portacabin in 1996 were uncomfortable, but he had given the plaintiff the option of where to sit. He could not open windows, because the window was behind her desk and he would have had to stretch over her to do so. There were two heaters in the office during cold weather. He never heard any suggestion of anyone, including himself, following her around the garda station. He accepted the plaintiff declined to speak to him, but was unaware of the meeting between the plaintiff and Supt. Mockler in Glynn’s Hotel.
He confirmed that at the end of April and the start of May, 2005 he had been in Templemore. He had done the accounts in the books, but did not have the accounts for the month of April uploaded on computer. These were available, however, in the original Red Book, and as far as he was concerned his password and that of the plaintiff were the same. He had spoken with her on the 9th May, 2005, when he explained to her that all she had to do to complete the accounts was to copy the material onto a disc and explained to her how to do it.
The matter of Supt. Mockler’s expenses cheque was a minor issue and no problem really. He accepted that the usual practice in making up the accounts was that the first entry for the new month should be the cheque paid to the Department in Killarney.
Supt. Mockler was the main witness for the defence. He retired in 2006. He confirmed that the plaintiff was working with Garda Callaghy in the same office and that she had more knowledge of the work than he had, at least in clerical work generally. He found her to be an excellent employee.
When in November, 1996 the plaintiff went on sick leave and her medical certificates gave “work related stress” as the reason, he assumed at the time that the plaintiff had issues with working in the portacabin and working with Garda Callaghy. He was certainly unaware that the plaintiff had any issues with him or of any suggestion of bullying.
His recollection was that the meeting in the hotel took place on the 8th January, 1997. She selected the venue and the manager of the hotel directed them to a small function room upstairs. He offered tea and refreshments which she declined. She told him during the meeting that her issue was with Garda Callaghy, that he was not “telling her things”. This was the only allegation of substance. There were no complaints about bullying or harassment, nor indeed about inability to open windows, insufficient heat in winter or being followed. He certainly had not said that he would make it hard for her at work. He felt she was comfortable throughout the meeting and at lunchtime he had suggested that they chat during lunch, an invitation she declined.
His subsequent telephone calls to her home were part of a process of ensuring that staff were properly supported and helped. He was interested to know when she would be coming back and also suggested that a meeting be arranged with Garda Callaghy to address any difficulties between them. He confirmed that when he first rang the plaintiff she hung up the phone and that on the second occasion the plaintiff’s husband said “she was out”. The third call was of brief duration. When Dr. Piggott rang him up to say “don’t call”, he never called her again.
She came back on a three-day week that year and took maternity leave in October, 1997. When she returned in May, 1998 she moved into the sergeant’s office and worked away happily there until the difficulties which arose in 2005.
In 2004 she had applied for the position of Finance Officer and was duly appointed to that role and paid accordingly. However, the ongoing difficulty was that if a garda clerk wished to stay in that position, as did Garda Callaghy, a newly appointed officer had to wait until that other person either retired, left or transferred.
When Supt. Mockler came back from a short period of leave on the 5th May, 2005, in circumstances where Garda Callaghy was away, he realised the accounts for the month of April needed to be dealt with immediately. On Monday morning of the following week he asked her to deal with the accounts. He felt she was well capable of performing this task as she had the function of completing the Red Book from which the records were drawn in 1994, before Garda Callaghy arrived at the station. As far as he was concerned, she had more than enough experience to perform this function, but assumed she would carry it out in the upstairs district office.
He was shocked to see that the plaintiff was attempting to perform these functions in the sergeant’s office and that the books were open on her desk unattended during a lunch break. That office was not a secure location. He removed them back to the district office and told her to complete the work there. He accepted she stated there had been a problem with the computer but she called Garda Callaghy to get assistance. It is within the discretion of the district officer as to where the accounts are to be done under the Garda Síochána Finance Code Regulations and as per Supt. Mockler’s instructions the accounts were to be completed in the district office.
In so far as the cheque incident was concerned, he had been out of the office on Tuesday, the 10th May, 2005, but was back in on Wednesday. The plaintiff came to Supt. Mockler’s office about a cheque for his expenses which had been given to him some days previously. She explained that she had telephoned Mr. Guidon in the Commissioner’s Office because she felt it was “irregular”. He felt this implied some wrongdoing on his part and told her to call the accountant’s office in Killarney. He simply gave the cheque back to her. He was not conscious of any upset or distress, nor did she make any complaint to him at the time. However, he accepted that the plaintiff made it clear that she was unhappy completing the accounts upstairs. He felt it was his function to direct where the work was done and there were security implications in having such work done in the sergeant’s office which was downstairs in a room which was unlocked, unlike the district office. He did not threaten her or raise his voice or suggest that any assurances she had previously received from Chief Superintendent Monaghan were now worthless.
It was put to him in cross-examination that she was perfectly entitled to seek clarification as to the status of the cheque, a proposition with which the witness agreed. He accepted that the accounts, as a matter of good practice, should have been completed on the fifth day of the month. He further agreed that no substitute had been arranged for Garda Callaghy during his absence in Templemore. He denied the suggestion that he was putting “a gloss on unpleasant events” to conceal the fact that the plaintiff had been treated unfairly.
He accepted that when the plaintiff applied for promotion to the position of Finance Officer through an internal Department of Justice competition he had approved her application but in a subsequent telephone call had expressed concerns up the line about the plaintiff’s “consistent hostile attitude” in relation to certain aspects of her work.
Retired Chief Superintendent Tom Monaghan also gave evidence. He had known the plaintiff going back to 1993 and understood that she was “unwell” more than average. He was asked by the Employment Assistance Service to call the plaintiff in relation to her illness and her future which he did in April 1997. He was aware that she was out of work due to stress, but in the course of their conversation she made no mention of bullying or difficulties with any garda, nor did she bring up the meeting in Glynn’s Hotel. He did not give her any assurances, but was aware of the building works going on in Gort Garda Station and that there were consequential difficulties for those working there in portacabin accommodation. His reason for contacting the plaintiff was in relation to assessing staff for optional discharge if they were on prolonged periods of sick leave. When asked to be a witness in the case he was shocked to hear that the plaintiff had raised allegations of bullying. He had not arranged her switch to the sergeant’s office following her return to work in 1997. He had allocated another clerical assistant to Gort at a later time when staff became available. He had visited Gort Garda Station on a number of occasions and had discussions there with the plaintiff who appeared to him to be of a nervous disposition. His visits to the station were generally for the purpose of inspection but he kept the tone light and informal and often retired to the kitchen with the staff members for tea. He would have been conscious of any sort of allegations of bullying given that there was a new culture of female garda members in the force and there had been allegations by other female gardaí that they had been sexually harassed. A “Divisional Welfare Committee” had been set up in relation to issues of that sort and had such an issue been raised by the plaintiff he would certainly have remembered to bring it up at a meeting of this body.
Mr. Gerry Guidon, Financial Accountant, in the Department of Justice, gave evidence that his job was to coach, mentor and advise staff in relation to finances. He confirmed there was no rule or regulation that the first cheque of the month should be the accountant’s cheque, but it was the normal practice. A cheque would only be cancelled if it was for the incorrect amount, incorrect payee or was more than six months out of date. Any question of security of the records was a matter for the district officer, under the Garda Síochána Finance Code Regulations, in this case, Supt. Mockler. He had no memory of any specific query addressed to him by telephone by the plaintiff.
Pamela Holland is employed by the defendant in the Employment Assistance Service which provides a confidential service for civilian employees of the Department. She was first contacted by the plaintiff in 1996. There were a number of short abrupt calls, the general tenor of which was to convey to her that the plaintiff felt stressed and anxious, that the work environment was tense and that she did not have good relations with the person working in the room with her.
By way of response she called to the station, but her visit seemed to embarrass the plaintiff who requested that they go to the car park for their conversation. In follow up contacts and conversations, the plaintiff had referred to suggestions of bullying. This was a matter of grave concern to Ms. Holland who asked that any such allegation be advanced in writing. This the plaintiff refused to do.
In 1997 she rang the plaintiff to say she would come down to Gort to meet her confidentially. The plaintiff identified a café in the visitor’s centre of a resort outside Gort and a time and date was fixed for the meeting. The plaintiff gave her directions how to find it. She drove down from Dublin, went to the café and waited for two hours but the plaintiff did not show up. When she tried to telephone the plaintiff there was no response so she left a voicemail saying she was waiting for her. Her further interaction with the plaintiff came in 2008 when the plaintiff raised with her the issue as to whether or not any counselling she might wish to have would be paid for, given that gardaí have paid counselling from the medical fund.
Professor Patricia Casey, Consultant Psychiatrist, had one interview with the plaintiff in May, 2012. At this meeting the plaintiff confirmed she had no complaints and no difficulty since 2005. Her current status was that she was well. In terms of past medical history, she indicated she had no past psychiatric or psychological problems. However, when her G.P. notes became available they indicated that she had been depressed following the birth of her baby in 1995 and further stress associated with the death of her father had resulted in more significant anti-depressants being prescribed for her between May and November, 1995.
The plaintiff had no symptoms of post traumatic stress disorder. She would agree that the plaintiff had what she described as an “adjustment disorder”, which she described as an abnormal level of stress and anxiety arising in a reactive way to life events. This is a self limiting condition which occurs in close proximity to a single event, and when the stressor is removed, the symptoms improve.
LEGAL PRINCIPLES
It is important to record at the outset that bullying is one of the more obnoxious traits in human behaviour. That is so because it involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct which is intended to reduce that person’s sense of self worth. It may occasion significant pain and suffering to any person so treated. The phenomenon of teenage suicide is often linked to bullying. Bullying can occur at any stage in life and between all age groups. The young can bully the old and vice versa; those in authority can bully pupils or employees, those charged with the care of the weak and elderly can similarly behave and school or workplace colleagues can engage in bullying behaviour (in any of its multiple forms) to such a degree that life no longer seems worth living for the victim. Any rational person who has seen the effects of bullying will agree that it is an activity which carries a grave risk for the victim’s health and for his or her ability to function in a normal way.
That said, 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. Workplace stress on the other hand may be actionable if certain legal criteria are met. It can be the result of behaviour which falls far short of bullying. It can 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.
It follows that the first question that must be asked in every bullying case is 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.
The legal definition of bullying as recommended by the Report by the Task Force on the Prevention of Workplace Bullying (Stationery Office, March, 2001) is set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17 of 2002) as:-
“[R]epeated 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.” (Emphasis added)
This wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for reasons of common sense also, be an objective one given that any other would leave every defendant vulnerable to allegations of bullying based on purely subjective perceptions on the part of a plaintiff who might contend that straightforward situations at work or otherwise were construed by him/her as amounting to bullying.
In Quigley v. Complex Tooling and Moulding Ltd. [2009] 1 IR 349, the Supreme Court, when defining bullying or harassment at work, did not feel any need to go further than the statutory definition. As Fennelly J. stated at p. 372:-
“Since the definition of workplace bullying taken from the code of practice laid down in the statutory instrument has been accepted by the defendant as an accurate statement of the common law duty of care, it is not appropriate to refer to other authority.”
While the plaintiff also complained of workplace stress (to which other legal considerations apply), the genesis of that particular aspect of the case lies in events which transpired in 1996 and 1997 which are not the subject matter of the present claim for compensation. Indeed they were not the subject matter of any legal claim at the time. On the contrary, the present claim is one in which in the plaintiff’s pleadings it is alleged that “the plaintiff was repeatedly hounded and harassed” by the said superintendent over a four day period in May, 2005 in relation to the preparation of monthly accounts and “the need to complete the task quickly and in relation to the issue of the irregular payment to him”.
Reliance on was placed by Mr. Rogers on the decision of Herbert J. in Sweeney v. The Board of Management of Ballinteer Community School [2011] IEHC 131 (Unreported, High Court, Herbert J., 24th March, 2011) to argue that the legal test for bullying was a two-pronged test, the second part of which is to inquire whether the activities complained of were such as to meet a test of reasonable foreseeability that the particular claimant would suffer harm or damage. However, Herbert J. in that case found there had been continuous bullying and harassment of the plaintiff so that this further requirement does not seem appropriate in the context of a bullying allegation. Such a test seems more appropriate to cases where it is alleged an employer failed to alleviate workplace stress which they knew, or should have known, was likely to cause injury to an employee.
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 ER 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.
DECISION
I believe there were two issues which greatly exercised the plaintiff in this case, namely, her sense of injustice that she, as a civilian employee, was not being paid the same rate for the same work as her garda colleague, Garda Callaghy. Second, but equally important, the working conditions in which both were obliged to work in 1996 can only be described as unsatisfactory and for that reason conducive to work place stress. It is not difficult to see how working relations between colleagues could become strained in such circumstances. That is what I believe occurred between the plaintiff and Garda Callaghy. However, those facts, and I find those were the facts, fall far short of substantiating an allegation of bullying by Garda Callaghy or anyone else.
In evaluating the different witnesses in this case, the court felt considerable concerns about certain aspects of the plaintiff’s evidence. In particular, the Court felt there was no acceptable explanation for the plaintiff’s failure to disclose her prior history of depression to either her own medical experts (apart from Dr. Piggott, whose report made no reference to it) or by way of reply to particulars. In a case of this nature, an omission or failure of this sort is enormously significant, given that so much turns on the credibility of the witnesses on both sides. Effectively, the plaintiff subverted the value of evidence tendered both by herself and by her own medical experts to a very significant degree given that the latter were left in the dark about this prior history.
Having had the ample opportunity of assessing the plaintiff’s demeanour in the witness box, the Court was left with a clear impression of a person who was somewhat perfectionist and was a person who took offence easily. She was not slow to criticise others and tended to turn minor incidents into events of major proportions. In particular I find her lack of co-operation with Ms. Pamela Holland to be quite extraordinary, given that Ms. Holland on one occasion travelled a long distance to meet her and address her concerns but was left high and dry having waited at a location designated by the plaintiff for that meeting. No satisfactory explanation for this treatment of Ms. Holland was offered by the plaintiff.
In contrast, I found the evidence of Supt. Mockler to be both credible and reliable. I am satisfied and find as a fact that he was unaware of difficulties between the plaintiff and Garda Callaghy until the meeting in the hotel in Gort in December, 1996 (or January, 1997 as the case may be). The plaintiff portrayed this meeting as though it was one where she was virtually held captive for five hours and denied food or refreshments. Having heard Supt. Mockler’s account of this meeting, I find his version of events much more credible and I prefer his account to that offered by the plaintiff. Having observed his demeanour in the witness box, he impressed me as a truthful and careful historian of events at Gort Garda Station both then and later. His subsequent agreement to allow the plaintiff work a shorter week is not the hallmark of a bully.
I make the same finding in relation to the supposed “harassment” alleged to have occurred when Supt. Mockler phoned the plaintiff in the aftermath of that meeting at her home in January, 1997. He was perfectly entitled to make such a telephone call as a concerned senior officer in the station, given that he wished to enquire as to when the plaintiff might be returning to work and whether he could help in any way, but on making the call the plaintiff hung up the phone. Her husband then said she had gone out and Supt. Mockler was ultimately obliged to have another officer call the house to have what most people would regard as a perfectly routine conversation with a work colleague. I reject totally any suggestion that these telephone calls constituted harassment or bullying of any kind. I find as a fact that there was no bullying or harassment of the plaintiff in 1996/1997.
In so far as the events of May, 2005 are concerned, Supt. Mockler was out of the office for one of the four days during which the plaintiff was dealing with the accounts, engaged as he was in a murder inquiry. He was quite within his entitlement to ask the plaintiff to complete the accounts for Killarney in the context of Garda Callaghy’s absence. This may have come as a surprise to the plaintiff, but I am satisfied she was well capable of performing the task and should not have adopted the unwilling disposition which she did adopt in relation to that task. The matter of the Superintendent’s cheque was, in the view of this Court, ‘a thing of nothing’, which certainly could, and should have been, sorted out between the two of them in the garda station, as one would expect normal working colleagues to do. Quite apart from the sheer physical impracticality of “throwing” a cheque, I do not believe or accept the plaintiff’s account in regard to that particular incident, but prefer instead the evidence tendered by Supt. Mockler whose calmness and patience under prolonged cross-examination greatly impressed the Court.
In summary, I cannot see that anything in the behaviour of either Garda Callaghy or Supt. Mockler constituted bullying or harassment in this case. Indeed, when the plaintiff was moved to the office in which she wished to work, all her complaints ceased in 1998 and only resurfaced when she was asked to do something she was unwilling to do in 2005. The length of this interval is remarkable in the context of this case because, far from supporting a complaint of bullying (which is commonly experienced as an ongoing phenomenon) it indicates that in reality the plaintiff had a workplace issue and her complaints and stress went away once she moved to a different environment within the station.
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. Even if events were as described by the plaintiff, they are more synonymous with the kind of ‘isolated incident’ excluded from the definition of bullying by S.I. 17 of 2002.
Another notable feature of the case is that not a single other member of Gort Garda Station has offered evidence to suggest that there was any culture of workplace bullying or harassment in Gort Garda Station, nor was there a single witness to corroborate the plaintiff’s complaints in any way.
Overall the Court was left convinced that, far from being a case of workplace bullying, the plaintiff’s problems all stemmed from what she saw as unreasonable working conditions in 1996 and what she saw as an unreasonable request directed to her by Supt. Mockler in 2005.
I would therefore dismiss the claim in so far as it consists of an allegation of bullying.
I am also of the view that this is not a case in which the plaintiff has made out a case of 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. Her workplace conditions were not markedly altered when, in May, 2005 she was asked to perform a straightforward task for which she was well qualified. Supt. Mockler was, on the findings of fact I have made, entitled to assume she could comply with his requests in that regard.
I would therefore dismiss the claim on this ground also.
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.
I would therefore dismiss the claim
Ruffley v Board of Management of St Anne’s School (HC)
[2014] IEHC 235
JUDGMENT of O’Neill J. delivered on the 9th day of May 2014
1. The plaintiff in this case sues the defendants, her employers, for damages for bullying and harassment which, she claims, occurred between 14th September 2009, and 27th September 2010, in the course of her work as a Special Needs Assistant (SNA) in the defendants’ national school known as St. Anne’s located at the Curragh, County Kildare.
2. ‘Workplace Bullying’ is 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.”
3. 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.”
The facts relating to this matter are as follows.
4. The plaintiff, who was born in 1968, was employed by the defendants as a Special Needs Assistant at their school located in the Curragh, County Kildare. This school is a national school but caters exclusively for children with physical and/or intellectual disabilities, and unlike a normal national school, takes children from the age of four up to eighteen years. The school was founded by the KARE Organisation, which is an organisation of parents of children with physical and/or intellectual disabilities and has been in existence for nearly half a century and provides services, including schools, for children with those disabilities. Over the years since its inception, the range of services provided by the organisation has expanded greatly as has the organisation as an institution itself, now employing approximately 350 people. St. Anne’s School is under the patronage of the KARE Organisation and the Chief Executive Officer of KARE, Mr. Christy Lynch, is also the Chairman of the Board of Management of St. Anne’s School. As patron of the school, KARE also nominates one of the members to the Board.
5. St. Anne’s School caters for approximately 70 to 75 pupils and in 2009 had 14 teachers and 26 Special Needs Assistants. In addition, the school has available to it a variety of other quasi-medical services such as Occupational Therapy.
6. In the school there is what is known as the ‘Sensory Room’. The purpose and function of this room is to develop the sensory perception of pupils by exposing them to a variety of sensory experiences such as music, vibration, movement, light and colour. There is in the sensory a variety of equipment designed to promote the development of the child’s sensory perception. The room in question has been in existence for approximately five years. Prior to that, it had been used as a secure room to store the school’s computer equipment. The room is not a particularly large room, described by one witness as about 13ft x 10ft and does not have any windows. There is, apparently, a skylight. The door into the room is a metal door which could be locked from the outside with a key but at all times material to this case that was never used. There was, on the inside of the door, a lock which was described as similar to the lock on the inside of a toilet door which could be secured by twisting the lock to either open or close it. As will be seen, the controversy that arose in this case between the plaintiff and the defendants centred on the use of that lock.
7. Every pupil who used the Sensory Room had a programme designed for him or her by the Occupational Therapist and this would be carried out by a Special Needs Assistant or sometimes two Special Needs Assistants, depending on the pupil in question, under the direction of the class teacher. In general, only one pupil at a time would be accommodated in the Sensory Room, although it would appear sometimes there could be more than one pupil there at a given time. To successfully carry out the programme, it was desirable, if not necessary to ensure that during the programme there would not be distractions such as the intrusion of others, in particular, pupils coming in to the Sensory Room. Thus, it would appear to have been normal for the door to the Sensory Room to be kept closed whilst a pupil inside was going through a programme. At issue in this case was whether or not there was a common practice amongst SNAs of also locking the door whilst a pupil was going through his or her programme in the Sensory Room, using the lock on the inside of the door.
8. The plaintiff was employed by the defendants as a SNA from January 1999. From then until September 2009, it is commoncase that the plaintiff discharged her duty as an SNA in a satisfactory manner, enjoyed good relations with teachers, other SNAs and the Principal, Ms. Dempsey, and had never had any disciplinary issues or grievances during that 11-year period.
9. All of that changed on 14th September 2009.
10. On that day, the plaintiff was in the Sensory Room with a young boy after 1pm. Soon after the programme began, and when this pupil lay on a mat or mattress, he fell fast asleep. This was a most unusual occurrence for this pupil who suffered from ADHD, a condition which predisposed the pupil in question to hyperactivity rather than the reverse.
11. When he fell asleep, the plaintiff went to the telephone outside the Sensory Room a short distance away and telephoned the class teacher, Ms. Rachel Bramhall, for instructions. Ms. Bramhall instructed the plaintiff to allow the pupil to continue sleeping for a further period of 20 minutes before bringing him back to the class. In the meantime, Ms. Bramhall, being alarmed at this unusual development, rang the Principal, Ms. Dempsey, and asked her to check out the situation. Ms. Dempsey did that and when she approached the Sensory Room, she found the door locked and on her third attempt to gain entry, the door was opened by the plaintiff who readily accepted that the door had been locked. The question of the door being locked or otherwise was not discussed then. Ms. Dempsey confirmed the instructions given by Ms. Bramhall to allow the pupil to continue sleeping for a short period. This, the plaintiff did, and in due course brought the pupil back to the classroom in time for departure from school that day.
12. The following day, 15th September 2009, when the plaintiff came in to work, she was requested by the Principal, Ms. Dempsey, to come to her office which she did. When the plaintiff went to the Principal’s office, she was informed by the Principal that she was handling the matter in the context of the disciplinary procedure. The plaintiff’s evidence was that she was told she was being investigated. The plaintiff’s initial response, as noted by the Principal, was that she thought this was because the pupil was asleep but the Principal informed her that it was because she had locked the door with the pupil inside.
13. It would appear from the Principal’s note of this discussion that the plaintiff’s response to this was to say that she hoped that the Principal would be dealing with all the SNAs who did this. The Principal’s note of her response to this was that that was another issue for another time. The plaintiff was informed to come back to the Principal’s office at 2.30pm and she was advised by the Principal to bring somebody with her to the meeting.
14. The plaintiff, in her evidence, described herself as being shocked by this encounter, as it was her evidence, corroborated by other SNAs who gave evidence, that it was a common practice amongst the SNAs to lock the Sensory Room door whilst conducting a pupil’s programme and that no instruction had ever been given not to do this, and neither had any instruction been given to do this.
15. The plaintiff came to the meeting with the Principal at 2.30pm as arranged. The plaintiff was accompanied by Ms. Louise Webb, a colleague SNA, and the Principal had arranged for Rachel Bramhall, the teacher to whose classroom the plaintiff was attached at that time, also to attend.
16. In the course of this meeting, the plaintiff accepted that she had locked the Sensory Room door and that she had done this over several years. She explained that the reason for doing this was to prevent other children from entering the Sensory Room door whilst she was conducting a session with a pupil and also to prevent a pupil described as “a runner” from running out of the room while the programme equipment was being set up. She explained that she had not been told to lock the door by any teachers, nor had she ever been instructed not to lock the door. An issue arose in the discussion concerning a visit by the Principal to the Sensory Room in April 2009, when the Principal came into the room with a number of visitors. The plaintiff contended that the door had been locked on that occasion as well and that the plaintiff at that time was accompanied in the room by another SNA, Ms. Una O’Connell. The Principal asserted that the room had not been locked or that she was not aware that it was locked on that occasion, as if she had been so aware, she would have raised the matter with the plaintiff then.
17. It would appear from the Principal’s note of the meeting that the discussion then went on to consider the suitability of the programme for the child who was in the room asleep the previously day and who was “a runner”. There appears to have been some discussion as to what might happen in the event of an emergency.
18. The plaintiff’s evidence was that after this meeting, she felt greatly relieved because she felt her explanation of why she had locked the Sensory Room door had been accepted by the Principal and that was the end of the matter. The Principal’s note of this meeting, apart from mentioning, apparently in the course of the discussion, the suitability of the child’s programme and that it might need to be changed with an OT referral, does not make any mention of any contemplation of further action arising out of the matters discussed in the meeting. Specifically, the note makes no mention at all of any complaint by the plaintiff of any inadequacy in her training in the use of the Sensory Room or any need for further training in that regard or of any plan for such training.
19. The evidence of Ms. Dempsey, the Principal, was to the effect that at a meeting on 18th September 2009, with the plaintiff and the teacher, Rachel Bramhall, a process of training was settled. This involved a four-week period, during which the plaintiff, in carrying out the programme of the child who was the “runner”, would, on a weekly basis, fill in a form, indicating by a tick, the activities in the Sensory Room which this child accomplished, and at the end of the four-week period, there would be a review.
20. Ms. Dempsey gave evidence of handing to the plaintiff a letter dated 18th September 2009, which was in the following terms:
“Dear Una,
Further to our meeting regarding the incident during which you locked the door to the Sensory Room whilst you were inside with a pupil. The evidence has been reviewed and the situation has been considered.
You appear not to be clear about the protocol around the use of the Sensory Room. Because of that, we are not going to take disciplinary action. However, this is a serious situation and one for concern. You were informed that you are being formally counselled with regard to the incident.
To ensure that it does not happen again, we will put in place a series of procedures which will include the following:
1. The class teacher will discuss and work with you on the effective use of the Sensory Room. This will include a list of activities and procedures which you will carry out when using the room.
2. Activities performed be logged on a recording sheet.
3. The situation will be reviewed with you by the class teacher for a period of three months and this will be recorded on the staff review form.
If the required improvement is not made or if there is any such breach of discipline in any aspect of your work performance, this may result in disciplinary action.
I am available, should you wish, to discuss any of the above.
Yours sincerely,
Pauline Dempsey
Principal.”
21. The meeting which took place on 18th September 2009 was for the purpose of going through the programme of the child in question in the Sensory Room. It would appear from Ms. Bramhall’s evidence that the plaintiff brought this written programme to the meeting and the meeting seems to have consisted of taking the child through the programme to ascertain the suitability for the child of the various parts of the programme. In the course of doing this, it became apparent, as it had already been the experience of the plaintiff that the child was unwilling to get on the swing, notwithstanding that this was part of the programme. Ms. Bramhall’s evidence was to the effect that this failure or omission did not matter. Apart from the swing, it would appear that this child was able and willing to do all other parts of the programme, and thus, it was considered that there was no need to consult the Occupational Therapist for a change in the programme. It was agreed that there would be a four-week period during which the operation of the programme of this child by the plaintiff would be reviewed. Over the weekend, Ms. Bramhall drew up forms which listed all of the activities in the programme and it provided for the ticking of these activities on a daily basis, depending on whether or not they had been accomplished by the child.
22. At the end of the first week, namely, the Friday, and the following Monday, the plaintiff was out sick and was replaced by another SNA. In discussion with Ms. Bramhall, this SNA disclosed that she had succeeded in getting the child to use the swing. When the plaintiff returned, Ms. Bramhall told her of this development and encouraged the plaintiff to continue with it. According to the evidence of Ms. Bramhall, the plaintiff initially reported to Ms. Bramhall that she was not able to do this, but later, in the third week of the programme, she told Ms. Bramhall that she had persisted in trying and had succeeded in getting the child onto the swing, but it would appear sitting on it only and not standing or lying on it, the other two prescribed activities relating to the swing.
23. At the end of the four-week period, when Ms. Bramhall was conducting the anticipated review with the plaintiff, she noticed that the plaintiff had ticked the box on the forms for lying on the swing and she queried this with the plaintiff who, it would appear, promptly confirmed that this was wrong and sought Ms. Bramhall’s permission to change the form so as to make it accurate. Ms. Bramhall refused to allow her to do this and recorded this result on the review of the plaintiff’s performance as a “miscommunication”.
24. It is difficult to comprehend this refusal on the part of Ms. Bramhall, given that what was being recorded were the activities accomplished by the child in question with a view to assessing or reviewing the suitability of the programme for him, including the capacity or performance of the plaintiff in implementing that programme.
25. On 19th October 2009, a further meeting took place between the plaintiff, Ms. Bramhall and Ms. Dempsey for the purposes of considering Ms. Bramhall’s review of the plaintiff, recorded on an SNA staff assessment form. This form was completed by Ms. Bramhall at that time and it is not entirely clear from the evidence of Ms. Bramhall if she was doing this simply because she was leaving the school shortly, or whether it was for that reason and also, as the completion of a review of the plaintiff’s performance after this four-week period.
26. Whilst the plaintiff, in her evidence, described the events that occurred at this meeting as occurring at a meeting on 12th November 2009, I am satisfied that she is incorrect in that, and what she described as occurring at the meeting on 12th November 2009, occurred at the meeting on 19th October 2009. I am satisfied on the evidence that in the course of that meeting, the plaintiff was challenged by Ms. Dempsey for having initially recorded the child as using the swing, as erroneously, Ms. Dempsey thought he was not supposed to use the swing, and secondly, for filling out the form inaccurately.
27. I have no doubt that the plaintiff, having been treated in this way, was afflicted by an acute sense of unfairness and grievance and probably did react in a combative way by raising other issues with Ms. Dempsey. I am quite satisfied that the plaintiff felt she was being treated unfairly in this review and she made that apparent.
28. At this point, one must go back in time to 18th September 2009, and the letter of that date which Ms. Dempsey said she handed to the plaintiff on that date. In the context of the meeting of 15th September 2009, and also the meeting on 18th September 2009, at which the programme of the child was reviewed, the letter of 18th September 2009, both in its tone and content, seems strangely out of place. I am satisfied that the meeting of 15th September 2009 did not give rise to any kind of general consideration of a re-training of the plaintiff in the use of the Sensory Room. Insofar as any problem emerged from that meeting, apart from the locking of the door, it concerned solely the suitability of the programme of the child in question and whether or not it was the unsuitability of that programme that impelled the child to attempt to run from the Sensory Room. At this time, the plaintiff had been a SNA in the school for eleven years and no issues had arisen relating to her competence or training in the use of the Sensory Room. Given that the only issue which emerged in the meeting of 15th September 2009, related to the suitability of the child’s programme, it would seem remarkable if the overall competence and training of the plaintiff in the use of the Sensory Room arose for discussion. I am quite satisfied it did not and the Principal’s note of the meeting, although detailed, makes no mention of the plaintiff’s training or the lack of it in the use of the Sensory Room.
29. The meeting of 18th September 2009, I am quite satisfied on the evidence of Rachel Bramhall, was solely concerned with the suitability or otherwise of the child’s programme and I would infer from the evidence that the discussion at this meeting was largely conducted between the plaintiff and Ms. Bramhall and the conclusion of the meeting was, as already indicated, to conduct a review of the programme, but over a four-week period. In all of this, there is not the slightest hint of any threat to the plaintiff, disciplinary or otherwise. The concern seems to have been solely focused on getting the child’s programme right. In this context, everything was focused on this particular child and his programme, and there was no mention whatsoever of how the plaintiff dealt with any other child or children in the Sensory Room.
30. Thus, the content and tone of the letter of 18th September 2009 seem oddly heavy-handed and unrelated to what actually was happening in the meetings of 15th September 2009, and 18th September 2009. There is a specific reference in the letter to a review after three months which was never mentioned in either of these two meetings.
31. When the letter of 18th September 2009 was put to the plaintiff in cross-examination, she immediately and emphatically denied ever having got that letter or of having seen it before it was put to her in cross-examination. I believe the plaintiff in this regard and am quite satisfied that she was not given that letter then or since.
32. The evidence of Ms. Dempsey, the Principal, was to the effect that notwithstanding the invocation of the disciplinary procedure as set out in the letter of 18th September 2009, and as indicated in that letter, no further disciplinary action would be taken because of the training deficiencies of the plaintiff highlighted in the meeting of 15th September 2009. In the first instance, in light of the above, I find this suggestion to be contrived as it bore no relation to what was actually happening at that time.
33. Ms. Dempsey went on, in her evidence, to express dissatisfaction with the outcome of the review process conducted over the four-week period, and specifically with Ms. Bramhall’s review of the plaintiff’s performance during that time. From this, Ms. Dempsey concluded that there had been no improvement and, worse than that, the inaccurate completion by the plaintiff of the form drawn up by Ms. Bramhall which Ms. Dempsey characterised as “falsification” raised, in her view, an additional disciplinary issue.
34. I found the evidenced of Ms. Dempsey with regard to all of this, strange, to say the least. Against a background where there was no doubt but that, firstly, there was no question of the door being locked again, and secondly, the child in question was not only participating in his programme so that his tendency to “run” had not reoccurred, but in fact, had advanced in his programme and was now accomplishing more than had been the case at the start of the four-week programme, the conclusion that there had been no improvement is not only groundless but seems to have wandered into the realm of irrationality.
35. The treatment of the plaintiff’s request to Ms. Bramhall to change the filling out of the form so as to make it more accurately conform to the undoubted reality, which was never in doubt, as “falsification”, can only be said to be extreme and utterly removed from what right-thinking people would consider to be a reasonable conclusion in that regard. It has to be remembered that the forms in question were designed by Ms. Bramhall, on her own initiative, for the purpose of reviewing the suitability of this child’s programme. Forms of this kind had never before been used for this child or any other child in the school. Thus, the plaintiff, as the only SNA ever asked to use this type of form, was, up until their introduction, entirely unfamiliar with them, and one would have thought that the plaintiff’s mistake in completing the form might, in the first instance, have been permitted to be rectified by Ms. Bramhall, and secondly, treated by Ms. Dempsey as no more than an honest mistake, and in the interest of ensuring a proper recording of the child’s participation in the programme for the future, ought to have been corrected to reflect the true position. Instead, the form and the plaintiff’s error in the completion of it appear to have been used by Ms. Dempsey as a trap for the plaintiff.
36. Arising out of all of this, the evidence of Ms. Dempsey was to the effect that because of the failure of the plaintiff to improve and her “falsification” of the forms, the disciplinary process needed to be revived and the matter brought to the attention of the Board for what she described as “advice” as to how to proceed.
37. About that time, she also raised the matter with Mr. Lynch, the Chairman of the Board of Management of the school, and he readily assented to the matter being brought to the attention of the Board. In his evidence, however, he seems to have been only concerned about the locking of the door, which he saw as wholly unacceptable because of the child protection implications involved. Although Ms. Dempsey saw the unsatisfactory outcome of the four-week review process as the factor now necessitating a revival of the disciplinary process and a recourse to the Board, Mr. Lynch, in his evidence, did not seem to be alert to all of that, but seemed solely focused on the locking of the door in the context of child protection.
38. A further meeting was held between the plaintiff and Ms. Dempsey on 12th November 2009, the purpose of which was to move the plaintiff into the class of the Deputy Principal, Ms. Mary Fleming. The evidence of Ms. Dempsey was that this was not precipitated by the recent review, but was necessitated by other staff changes, specifically, the departure of Ms. Bramhall from the school in the first week of November 2009, to whose class the plaintiff had been attached, and the necessity to move another SNA who was pregnant into a different position. The evidence of Ms. Fleming was that the plaintiff’s performance as an SNA attached to her class was entirely satisfactory from then until the plaintiff left the school at the end of September 2010.
39. The next meeting of the Board was scheduled for 23rd November 2009. A few days before that meeting, and I accept the plaintiff’s evidence in this regard, the plaintiff was informed by Ms. Dempsey that the matter was going to be raised with the Board at its meeting on 23rd November. The plaintiff was not told by Ms. Dempsey any detail whatsoever concerning the material that was to be put before the Board or what proposal, if any, the Board was to be asked to consider or what possible outcome there might be insofar as the plaintiff was concerned. The plaintiff was given no written material concerning what might transpire at the Board meeting. The plaintiff was not told that there might be any adverse disciplinary outcome so far as she was concerned, nor was she told that it was the intention of the Principal to seek a disciplinary sanction against her. Ms. Dempsey, in her evidence, accepted that the plaintiff was merely told that “it” was going to the Board, and no more.
40. In the two months that had elapsed since 15th September 2009, I am quite satisfied from the evidence that Ms. Dempsey did nothing to investigate the plaintiff’s contention that other SNAs locked the door of the Sensory Room, in effect, that it was a common practice amongst SNAs. Ms. Dempsey gave evidence of having regular meetings with teachers and SNAs over the school year so that over that time she would probably meet each member of staff once. Whist this process continued in the two-month period between 15th September 2009, and the 23rd November 2009, during which time she would probably have met four or five SNAs in this way, I am quite satisfied from the evidence that she did not elicit their views on whether or not there was a practice amongst the SNAs of locking the Sensory Room door. At a general meeting of SNAs on 20th October 2010, she did give an instruction that the Sensory Room door was not to be locked, but it is quite clear that she did not conduct any inquiry at this meeting to ascertain whether or not there was a common practice amongst SNAs of locking the door.
41. The evidence of the other SNAs who gave evidence in the case, and also the evidence of the plaintiff, which I accept in this regard, establishes to my satisfaction that there was a general practice amongst many of the SNAs, probably a majority, of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time.
42. I would readily accept that it was reasonable of the defendants, both for health and safety reasons and, more probably, for reasons of child protection, to insist on a prohibition on locking the Sensory Room door. It is extraordinary that until 14th September 2009, no issue arose concerning the locking of this door at all. Notwithstanding that the defendants had a comprehensive safety statement prepared with the help of appropriate experts, no-one addressed the locking of this door or the presence on it of a lock on the inside, in the context of health and safety issues or child protection issues, at all. Because no one considered the matter, no instruction was given, either to lock this door or not to lock it. The matter was simply overlooked by the defendants. Mr. Lynch, in his evidence, put the matter clearly and succinctly when he said that he expected all members of staff, simply because of their training and experience, to have been aware that the locking of this door was unacceptable and that it was unnecessary for there to have been a specific instruction in that regard.
43. However, the daily task of carrying out the programmes of the various children in the Sensory Room fell to the SNAs and they had to cope with the practicality of that situation. Part and parcel of that practicality was the problem of intrusions by other children, for whom the Sensory Room was a great attraction, and also, apparently, a teacher, which had a disruptive effect on the work being done in the Sensory Room. There was also the problem, particularly with one particular child, of restraining that child from running out of the room. In addition, there was yet another problem, of which Ms. O’Connell gave evidence, of a particular child who liked to lock the room himself while he was in there.
44. With the benefit of due consideration and also hindsight, it can easily be said that notwithstanding these practical reasons for locking the door occasionally, the overriding necessity to observe appropriate child protection standards and also to ensure appropriate health and safety provision meant, unequivocally, that regardless of the practical considerations, this door should never be locked. Once the problem came to light, as it did in September 2009, it was easily resolved by way of appropriate instruction and the evidence establishes to my satisfaction it never occurred again. In addition, the obvious precaution of removing this lock from the inside of the Sensory Room door was attended to. It is difficult to understand why this had not happened much earlier.
45. When the matter came before the Board meeting on 23rd November 2009, it did so, not as an item on the agenda or as part of the Principal’s report, but under ‘Item 7: AOB’ (Any Other Business). The minutes record the following:
“Issue with SNA’s performance. Pauline outlined issues she had with an individual SNA. She has linked in with HR in KARE. She wanted the support of the Board to issue a verbal or written warning under the term of the SNA’s contract. Pauline to link in with HR in KARE to discuss the severity of the warning allowed for the presenting issues. All agreed to support the recommendation. Also, there is a mechanism to suspend an increment if there is dissatisfaction with an SNA’s performance. It was proposed that this should happen in this case in light of the situation Pauline outlined.”
46. Under the heading ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with disciplinary action. Notify DES of deferral of next increment for this individual.”
47. Evidence was given by Ms. Dempsey and Mr. Lynch of what transpired at the Board meeting. There would appear to have six members present including Mr. Lynch and Ms. Dempsey. It would appear that having heard what Ms. Dempsey had to say on the matter, the other four Board members, apart from Ms. Dempsey and Mr. Lynch, wanted the plaintiff to be instantly dismissed. It took some persuasion from Mr. Lynch and Ms. Dempsey to dissuade them from that course. However, it is clear from the evidence of Ms. Dempsey and Mr. Lynch that the majority of the Board, if the plaintiff was not to be dismissed, required the imposition of the disciplinary sanction immediately below dismissal, and also, that the plaintiff would have any increment in salary due to her deferred. Whilst all of this was being considered, it is extraordinary to realise that the identity of the plaintiff was never revealed to the Board and was known only to Ms. Dempsey and Mr. Lynch.
48. The evidence of Ms. Dempsey was that she outlined the full history of the matter to the Board. The extreme, if not, downright intemperate, reaction of the Board to whatever they were told, suggests that as a matter of probability, the account given by Ms. Dempsey to the Board of the history of the matter was almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff. Whilst I would readily accept that the members of the Board would be hyper-vigilant on all issues relating to child protection, and rightly so, as a group of probably fair-minded people, I do not think they would have reached conclusions so adverse to the plaintiff, unless grossly misled as to the true circumstances prevailing.
49. Specifically, it is quite clear, that what they were asked to consider was the gross misconduct of a single SNA as distinct from a common practice amongst many SNAs, albeit unacceptable. Insofar as Ms. Dempsey gave a history of the review process discussed above, it is probable she presented this, as she did in her evidence, as a failure of training, culminating in the falsification of a document, a presentation of matters which was undoubtedly untrue, unreasonable and grossly unfair to the plaintiff.
50. The extraordinary feature of all this is that the plaintiff knew nothing in advance of these proceedings and was given no opportunity to represent herself in any way. The purported representation of her by Ms. Dempsey was, in fact, a gross misrepresentation. To say that the conduct of Ms. Dempsey in relation to the lead up to this Board meeting and what happened at it was a departure from all of the norms of natural justice is a feeble understatement.
51. After this Board meeting, nothing was said to the plaintiff who remained in blissful ignorance of what had happened to her for a period of four weeks until 21st December 2009, when, again, strangely, Ms. Dempsey decided to tell the plaintiff just before the Christmas break that she was going to get a Part 4 Final Warning which would be given to her formally in the New Year. It is quite clear that in the discussion between the plaintiff and Ms. Dempsey, the plaintiff enquired how long this would be on her record. I am quite satisfied that she was told six months.
52. On 18th January 2010, whilst doing yard duty, the plaintiff was asked by Ms. Dempsey to come to a meeting in her office with Mr. Lynch. The plaintiff was accompanied at that meeting by Ms. Una O’Connell, a colleague SNA. At that meeting, she was told by Mr. Lynch that she was to receive a Final Stage Part 4 warning for a breach of health and safety, the grounds of which were the locking of the Sensory Room door. She was told that this would be on her record for 18 months. This shocked her, in view of the fact that immediately prior to Christmas, she had been told the warning would last for six months. The evidence of Mr. Lynch and Ms. Dempsey satisfies me that the 18-month period was chosen because this is what was provided for in the disciplinary policy of the defendants and the six months mentioned in December was based on a mistaken belief.
53. A meeting of the Board of management of the defendants took place on the evening of 18th January 2010, and under ‘Item 8’, again, ‘AOB’ (Any Other Business), the following is said:
“Issue with SNA performance
Met with the individual who was accompanied by another SNA. Talked through the issues and concerns and issued a formal written warning. Draft letter read out to BOM. Pauline will liaise with HR re wording about building in reviews into the letter etc. Deferral of increment was not applicable.”
Under the heading of ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with letter.”
54. I am quite satisfied on the evidence that at the meeting on 18th January 2010, that there was no general discussion, merely an announcement to the plaintiff of that which had already been intimated to her before Christmas, namely, that she was to get a Part 4 Final Warning. Notwithstanding that it may have been recorded in the minutes, I am quite satisfied that the issues were not “talked through”. I accept the plaintiff’s evidence that she indicated dissatisfaction and that she had been in touch with IMPACT, her union, seeking advice and support, and that she wanted to appeal the decision.
55. Two days later, on 20th January 2010, the plaintiff was again summoned to the office of Ms. Dempsey, and there she was handed a copy of a letter from the Board of management of the defendants, signed by Mr. Lynch, as Chairperson, and which was in the following terms:
“Dear Una,
Further to our meeting on 18th January which was attended by Pauline Dempsey, Principal, Una O’Connell, SNA (at your request), myself, as Chairperson of the Board of management and yourself. I wish to confirm that you are being issued with this final written warning as per Stage 4 of the disciplinary procedure.
This warning is being issued as a result of the investigation that was carried out at the request of the Board of management into an incident that occurred on 14th September 2009, whereby you locked yourself and a child into the Sensory Room. On conclusion of the investigation, the matter was discussed at the Board of management meeting on 23rd November 2009, and it was agreed at this meeting that you be issued with this warning.
The Board of management views any breach of health and safety procedures as a very serious matter and wishes to inform you that a further breach of this or any other school policy could result in further disciplinary action, up to and including dismissal.
This warning will remain on your file for a period of 18 months.
If you have any queries on the above, please contact me.
Yours sincerely,
Christy Lynch
Chairperson”
56. It is to be observed immediately that the statement in the letter that an investigation was carried out at the request of the Board of management is simply not correct. The Board of management knew absolutely nothing of the locked door incident on 14th September, or of any other issue concerning the plaintiff, until the meeting of 23rd November 2009, when, for the first time, they were given Ms. Dempsey’s account of the matter. It is plainly obvious that after the Board of management meeting on 23rd November 2009, there was no further investigation other than queries addressed by Ms. Dempsey and Mr. Lynch, one to the Department of Education and Science with a view to deferring any increment in salary due to the plaintiff, and the other to KARE, solely with regard to the terms of the final written warning.
57. It transpired, on inquiry to the Department of Education and Science, that the plaintiff was not due an increment for three or four years, and therefore the defendants were unable to activate that penalty.
58. 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. By this, I mean that the offence of locking the Sensory Room door, which the defendants were entitled to regard as unacceptable, was undoubtedly a common practice amongst the SNAs, and had the defendants, and in particular, Ms. Dempsey, carried out the appropriate enquiries after 14th September 2009, at that time, that would undoubtedly have been readily ascertainable. She did not do that. As a consequence, the picture presented to the Board on 23rd November 2009, was of individual misconduct on the part of the plaintiff.
59. Had the Board been told the true position, whilst they might well have been shocked that such a practice existed and directed steps to prohibit it, they could not have singled out the plaintiff to suffer punishment for it, alone. In addition, it was commoncase that the issue of the locking of the Sensory Room door had never arisen for consideration and therefore no instruction had ever been given in relation to it, and neither had it been considered in the context of the defendants’ Health and Safety Statement. In these circumstances, notwithstanding the training and experience of SNAs, it was unfair to impose a severe disciplinary sanction on an SNA for doing something that in the circumstances in which it was done, had practical merits and where no instruction was given not to do it.
60. 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.
61. 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.
62. But, according to her own evidence, it was her conclusions in this regard that prompted her to invoke the disciplinary process by taking the matter to the Board with all that ensued therefrom. In my view, the plaintiff should not have been subjected to this disciplinary process. When it came to light that the Sensory Room door was locked, and when the plaintiff responded by indicating that other SNAs did it, the appropriate and immediate response of Ms. Dempsey should have been to ascertain the truth or otherwise of the plaintiff’s contention. If, having done that, and have ascertained, as she undoubtedly would have if she did conduct an appropriate inquiry, that there was a common practice of doing this, she should have, as she did in October, prohibit the practice, but it would have been entirely unfair and inappropriate to have initiated a disciplinary process against the plaintiff alone. The addition of what might be described as the “trumped up” charge of failing to improve and the falsification of a form, given the complete lack of any basis for it, was reprehensible, and as this is what led to the matter being brought to the Board, I am quite satisfied that this disciplinary matter should not have been advanced to the Board for the purposes of disciplining the plaintiff.
63. 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.
64. After the meeting on 20th January 2010, the plaintiff was asked to come to a meeting with Ms. Dempsey on 27th January 2010. I accept the plaintiff’s evidence that the purpose for this meeting, as expressed by Ms. Dempsey, was to get “closure” on the matter. There is a total conflict of evidence between the plaintiff and Ms. Dempsey as to what happened in this meeting. There were no other parties present. It was the plaintiff’s evidence that during the meeting, she was subjected to a considerable variety of denigration which belittled, humiliated and reduced her to tears. Ms. Dempsey denies all of the plaintiff’s allegations in this regard, apart from mentioning to her that she had exhausted her use of sick leave and to be more careful on that matter in the future.
65. I accept the plaintiff’s evidence as to what happened in this encounter.
66. Thereafter, the plaintiff sought the advice and support of the union, IMPACT, and in due course, a meeting was arranged for 23rd March 2010, which was attended by Mr. Lynch, Ms. Dempsey, the plaintiff and her union representative, Mr. Mullen. Mr. Mullen sought to persuade the defendants to remove or withdraw the final letter of warning and advocated that the closing of the door had been common practice amongst the SNAs. At this meeting, the plaintiff mentioned an occasion in April 2009, when she was in the Sensory Room with Ms. O’Connell, her colleague, when Ms. Dempsey came to the room with a number of visitors. The plaintiff’s evidence, and also that of Ms. O’Connell, was that the door was locked on this occasion. Ms. Dempsey contended on this occasion, and on the previous occasion, on 15th September 2009, that she was not aware that the door had been locked. The outcome of this meeting would appear to have been that Mr. Lynch requested that enquiries be made of the SNAs to ascertain whether or not there was a practice to lock the door. It would appear that at the meeting, Ms. Dempsey said that she had conducted enquiries of approximately 70% of the SNAs, none of whom admitted locking the door.
67. This meeting had been brought about by a letter dated 29th January 2010, from Mr. Philip Mullen of IMPACT to Mr. Lynch, in which the following was said:
“Re. Ms. Una Ruffley – Special Needs Assistant
Dear Mr. Lynch,
I refer to the final written warning issued to Ms. Ruffley on 18th January relating to an incident that occurred on 14th September 2009. We wish to appeal against this sanction on the following grounds:
1. Process: We believe that the process applied to the investigation did not accord Ms. Ruffley the right to adequately defend herself.
2. The procedures in place in St. Anne’s had not made it clear that locking the Sensory Room was a health and safety breach. That is not to say that it was acceptable, but rather, that the practice was known and had not been objected to previously.
3. Sanction: We believe that, given the circumstances, a final written warning is too severe a sanction in this case.
I would very much welcome an opportunity to elaborate on these points at your convenience and would appreciate if you would let me have copies of relevant documentation (disciplinary procedure, original complaint, minutes of meetings, etc.).
I would also appreciate if you could confirm if any other disciplinary matters relating to Ms. Ruffley are outstanding.
I look forward to your early response.”
Following the meeting on 23rd March 2010, the plaintiff devised a questionnaire which was put to her SNA colleagues. This contained two questions, the first being:
“Have you ever locked the Sensory Room door?”
The second question was:
“Have you ever been asked by Pauline Dempsey ‘have you ever locked the Sensory Room Door?”
68. This questionnaire was answered by four of her colleagues, all four of whom answered ‘yes’ to the first question. These colleagues were Ms. Angie Kearney, Ms. Liz McDonnell, Ms. Una O’Connell and Ms. Catriona Daly. Insofar as the second question was concerned, only one SNA, namely, Angie Kearney, answered ‘no’. The evidence of the plaintiff and her colleagues who gave evidence before me was that many more of the SNAs were willing to answer the questionnaire in the affirmative but only if they could do so anonymously. I accept their evidence in this regard. Insofar as any enquiries were made by Ms. Dempsey after January 2010, it would seem to me that such enquiries were likely to be ineffective as it was unlikely, having regard to what had happened to the plaintiff, which was well known in the school, that many of the SNAs who had locked the door would admit doing this.
69. In a further letter dated 22nd April 2010, from Mr. Mullen to Mr. Lynch, the following was said:
“Re: Ms. Una Ruffley – Special Needs Assistant
Dear Mr. Lynch,
I refer to our appeal against disciplinary action taken against Ms. Ruffley and our meeting with you and Ms. Pauline Dempsey.
For your information, I attach a copy of a questionnaire relating to the locking of the Sensory Room door which backs up our contention that this practice had not been unique to Ms. Ruffley.
I would appreciate if, taking account of our submissions, you could let me have your decision in relation to the matter.
Yours sincerely.”
70. The minutes of the meeting of the Board of management of 26th April 2010, at ‘Item 1.4’ record the following:
“SNA Performance
Christine and Pauline met with IMPACT. Letter just received in relation to that meeting. They contend it was custom and practice to lock the Sensory Room door. They had a questionnaire attached which four staff had signed to say they had locked the door. They say it was reasonable practice for the SNA to do so as she was reasonable practice for the SNA to do so as she was not told not to do so. The 18-month disciplinary was extreme. It had been agreed at the meeting that Pauline would speak to all SNAs.”
Under the heading of ‘Action’, the following is recorded:
“Pauline to speak with SNAs.
Pauline and Christy to discuss options with Conal Boyce.”
71. By a letter dated 20th May 2010, Mr. Lynch responded to Mr. Mullen as follows:
“Thank you for your letter of 22nd April 2010.
The Board of management considered the contents of your letter and have decided to stand over their original decision with regard to this matter.”
72. The next meeting of the Board of management took place on 8th June 2010. The minutes of that meeting, at ‘Item 1.3’ record the following:
“SNA Performance
Following advice from Conal Boyce, a letter was sent to IMPACT. They replied, and having reviewed the letter, the Board stand by the original decision. All agreed.”
73. Although this foregoing passage from the minutes would seem to suggest that there was a further reply from IMPACT to the defendants after the letter of 20th May, 2010, no such letter has been located.
74. As is apparent, the letter of 20th May 2010 seems to have been despatched before the Board had an opportunity to consider the results of Ms. Dempsey’s intended enquiries with all of the SNAs. There was no evidence to suggest that on foot of the decision taken by the Board on 26th April 2010 that Ms. Dempsey did specifically, at that stage, conduct the enquiries as envisaged by the Board with all of the SNAs. In the meantime, before the next Board meeting, the decision was taken by somebody, not the Board, to reject the plaintiff’s appeal grounded on evidence that the locking of the door was a common practice amongst SNAs. At its meeting on 8th June 2010, the Board appears to have ratified that decision, and in the minute, there is no reference to any consideration of the outcome of enquiries amongst the SNAs as to what was the position with regard to locking the door.
75. I am quite satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff, namely, that the locking of the door was a common practice amongst the SNAs. At this late stage, when the Board had been alerted to the plaintiff’s case in this regard, they declined to give it any due consideration. The plaintiff’s appeal to them, insofar as it could be said to be an appeal in the normal sense, as the appeal was to the same decision maker as had made the decision appealed against, thereby demonstrably offending the maxim Nemo iudex causa suam, in the event, fell on deaf ears.
76. Following on this, the plaintiff consulted a solicitor and this gave rise to a letter from her solicitor, Burns & Nowlan & Company, to the defendants, setting out in detail the plaintiff’s complaint. There was some dispute as to when that letter was sent. The plaintiff relied upon a copy of that letter dated 27th May 2010, whereas, for the defendants, it was contended that the letter they received was dated 22nd June 2010. It is commoncase that regardless of the date of the letter, the content of it was identical in either case. This letter finished with the following two paragraphs:
“We would be obliged if, within a period of ten days from the date hereof, you would reply to us with the following:
1. Kindly acknowledge that you have received confirmation from other members of staff and it was common practice that the Sensory Door was locked.
2. In light of the aforementioned information, why has a letter of apology not issued to our client?
3. Kindly acknowledge that our client and all members of staff have been issued with health and safety procedures.
4. Please confirm whether or not there have been previous complaints made against our client. If such complaints exist, why were they not dealt with in the appropriate manner?
5. Please confirm that there is no issue with the sick leave that our client has taken over the last fourteen years.
We are aware that the IMPACT union did represent our client in the latter part of the matter set out above. Please note that we now represent Ms. Ruffley. Our client is very anxious to have this matter resolved prior to the closure of the current academic year and therefore we look forward to hearing from you by return.”
This letter was replied to by a letter of 28th June 2010, from Mr. Lynch to the plaintiff’s solicitor in which he said the following:
“Thank you for your letter dated 22nd June 2010 with regard to Ms. Una Ruffley. The issues raised in your correspondence are a matter for the Board of management of the school.
As the school is now closed, these issues will be discussed by the Board at its next meeting on 20th September 2010.
Following discussion at the meeting, we will respond to you.”
77. The next step in the correspondence was a letter of 24th September 2010, from Mr. Lynch for the defendants to the plaintiff’s solicitor in which he said the following:
“Dear Madam,
I refer to the above Ms. Ruffley and to your letter dated 22nd June 2010 which has been received by the Board of management at St. Anne’s School, the Curragh. It is regrettable indeed that your client was occasionally unaccompanied at certain of the meeting which were held in relation to these matters as, had she chosen to have a third party with her, as advised, there might not be quite so much inconsistency in the versions of these matters which have from time to time been recounted to various parties.
In the first instance, it is absolutely denied that there was any question of bullying or harassment of your client who has at all times been treated with the utmost sensitivity and has been afforded all of the entitlements due to someone in her position.
Whilst it may very well be that from time to time it would appear that certain members of staff have, on very rare occasions, seen fit to lock the door of the Sensory Room at St. Anne’s School, this is not the policy of the school and it strongly advised that members of staff not do this, for reasons as we are sure you will understand, that include the safety and wellbeing, not only of the children, but also the staff member concerned. We presume your client will accept that there may very well be circumstances where it is inadvisable for a staff member to be locked in an inaccessible room, alone with any child, and for many possible reasons.
In the light of the foregoing, your client is not entitled to, nor has she ever sought a letter of apology and this letter is not to be construed as such an apology. We regret very much that your client seems to have taken offence at being advised that the advice contained in the preceding paragraph is indeed that of the Board of management, but that is the case and your client might note the position.
The Safety Statement of St. Anne’s School has been made available at all times to the staff. It is a substantial document, is freely available to all members of staff and has from time to time been on display in the staff room. Should your client have any issue with this, then she may contact any member of staff, but most particularly the Principal, with a view to inspecting the document. It is the case that all staff were appraised of the document’s content at meetings held on 5th May and 12th May 2006. Your client is recorded as being present in the school on that date.
We are surprised to discover that, in this context, you are instructed to raise the question of your client’s annual reviews. These have always been available to your client and your client knows well that there have from time to time been issues which have arisen and been dealt with as the Board understood it to the satisfaction of all parties. It was a matter that was raised by our client at a meeting with the school Principal, and, so we are instructed, dealt with. If your client has issues in relation to our annual reviews, then of course she may take these up with the Principal as she sees fit.
As part of the reviews referred to above, it has been necessary on a number of occasions over the past several years to raise with your client the question of her uncertified absences on sick leave. Again, this is something of which your client has at all stages been fully aware and we are surprised to find the matter raised in the context of the Sensory Room. Your client’s record of uncertified sick leave has been at all stages available to her, but she, of course, knows this better than anyone else herself.
You are correct in saying that IMPACT represented your client at various points in the course of correspondence about this matter. It is indicated to your client at that time that so long as everything ran smoothly there should be no reason to revisit these matters. The fact that they are now being revisited is a matter entirely for your client who failed to see what, if anything is to be gained at this stage in continuing with this correspondence.”
A number of things are to be noted in passing with regard to this letter. Firstly, reference to an apparent reliance upon the Safety Statement is curious, given the fact that it was commoncase that the Safety Statement was entirely silent on any health and safety aspects relating to the locking of the Sensory Room door, or to the presence on that door of an internal lock. The surprise at the matter of the plaintiff’s sick leave being raised in the context of the Sensory Room is also curious, given that the only thing that Ms. Dempsey admitted raising with the plaintiff in the meeting of 27th January 2010, was her sick leave, in respect of which she advised her to keep an eye on it.
78. The final paragraph in this letter appears to be a further rebuff by the defendants of the plaintiff’s primary assertion, namely, that the locking of the Sensory Room door was a common practice amongst SNAs, a practice which the third paragraph of that letter appears to implicitly, if not expressly, acknowledged to have existed.
79. The next letter in the correspondence is a letter dated 12th October 2010, from the plaintiff’s solicitor in reply to the defendants’ letter of 24th September 2010, in which the following is stated:
“(a) First of all, we are in receipt of the letter which you issued to our clients on 18th January 2010, wherein the second paragraph therein recites as follows ‘this warning is being issued as a result of the investigation that was carried out at the request of the Board of management into an incident that occurred on 14th September 2009 whereby you locked yourself and a child into the Sensory Room. On the conclusion of the investigation, the matter was discussed at the Board of management meeting on 23rd November 2009, and it was agreed at this meeting that you would be issued with this warning’.
(b) The writer herein is at a loss to reconcile the contents of your letter of 24th September with the contents of this letter. In your letter of 24th September 2010 it is admitted by the Board of management that members of staff have on occasion seen fit to lock the door of the Sensory Room, and yet our client was singled out in relation to one incident of locking the Sensory Room and was furnished with a final warning letter that was to remain on her employment file for a period of 18 months. It is on this basis alone that we requested that a letter of apology and acknowledgement that indeed the warning letter was going to be removed from her personnel file;
(c) Further, our client has instructed us that recently, on Friday 24th September 2010, the Principal of the school explained to the staff that it was now acknowledged and aware that at certain times members had locked the door. Our client finds it incredulous that if this was acknowledged by the school and by the Board of management, how our client was issued with a warning letter in respect of the matter;
(d) In respect of the annual reviews, once again we have taken our client’s instructions and have been informed that never in her 14 years of being employed by KARE had she any uncertified sick absences. Rather, she has confirmed that she was never made aware of any other ‘issues’ regarding her work and we would be obliged if, by return, you would identify these ‘issues’ so that our client can reply to same;
(e) Further, please note that our client is currently out of work. Her doctor has certified her leave of absence as work related stress. In light of same, we would be obliged if all matters pertaining to our client were directed through our offices . . .”
80. No reply was received to this letter and the solicitor for the plaintiff sent a reminder letter of 11th November 2010.
81. By a letter of 20th December 2010, Mr. Lynch, on behalf of the defendants, wrote, saying the following:
“Dear Madam,
I refer to your letter dated 12th October 2010 which was presented to the Board of management at its meeting in St. Anne’s School.
Further to extensive debate, it was felt that this was a matter that requires considerable further discussion by the Board of management.”
82. The minutes of the Board of management meeting on 9th November 2010, were put in evidence. These disclose no consideration by the Board of the plaintiff’s situation. At this stage, the Board were well aware of the fact that the plaintiff had been out of work since 27th September 2010 on sick leave, and, as had been advised by the defendants to the plaintiff in a letter of 14th December 2010, the plaintiff’s entitlement to incremental salary would expire on 19th December 2010, and thereafter, the best that was available to her was to apply for a period of unpaid sick leave. All of this would convey to any reasonable Board that there was considerable urgency in resolving the plaintiff’s situation and they were being pressed for such a resolution in the correspondence from the plaintiff’s solicitor.
83. The next meeting of the Board was on 18th January 2011.
84. By a letter of 17th January 2011, the plaintiff’s solicitors wrote to the defendants as follows:
“We refer to the above and to previous correspondence herein.
Please note we are writing on behalf of the above named client in respect of correspondence which you sent to her in December 2010.
Kindly note our client now wishes to apply for sick leave.
We look forward to hearing from you in this regard.”
85. ‘Item 1.6’ in the minutes of the Board meeting of 18th January 2011, states the following:
“SNA PERFORMANCE
Letter received dated 6th January 2001 from Burns & Nowlan Solicitors.
SNA has been informed by the DES that entitlement to incremental salary will cease on 19th December 2010. After this time, SNA must write to the Board requesting unpaid SL on a monthly basis.
Christy proposed that a letter is sent advising of current situation.
Seconded: Conal.”
Under the heading of ‘Ongoing’ related to the item, there is the following said:
“Sub-group to meet on 24th January 2001. Group to include Christy, Conal, Pauline.
Letter advising of this to be sent out.”
86. By a letter of 19th January 2001, the solicitors of the plaintiff for the first time wrote a standard letter intimating proceedings claiming damages for personal injuries sustained by the plaintiff. No further correspondence appears to have been received from the defendants relating to any further discussion by the Board of the plaintiff’s situation. Notwithstanding the letter of 19th January 2001, threatening proceedings, by a letter of 24th March 2011, the solicitors for the plaintiff wrote, saying:
“We refer to the above and to previous correspondence, and in particular to your letter of 20th December, wherein you refer to our letter of 12th October 2010 which was presented to the Board of management meeting at St. Anne’s School. Thereafter, you say you required further extensive debate before you could reply to same. The writer herein is dictating this letter on 24th March and would respectfully submit that any such debate should have taken place by now.
We look forward to a reply at your earliest convenience.”
There does not appear to have been a reply to this letter and there is no evidence of any further discussion, as intimated in the defendants’ letter of 20th December 2010, by the Board of the plaintiff’s situation, and in particular, the case made on her behalf by her solicitor in correspondence culminating in the letter of 12th October 2010. It would seem to me that the plaintiff, through her solicitor, did her utmost to pursue her grievance through the internal procedures of the defendants, but the defendants wholly failed to respond to her in that context, and thus, she was left with no option but to pursue these proceedings
87. Up until March 2010, it may have been the case that the Board were not aware of the merits of the case being made by the plaintiff, namely, that it was a common practice among SNAs to lock the door of the Sensory Room, notwithstanding that Ms. Dempsey, the Principal, was well aware of the plaintiff’s case. However, from March 2010, onwards, there can be no doubt but that the Board were clearly alerted to the plaintiff’s case, and from not later than April 2010, were also aware that several other SNAs also occasionally locked the Sensory Room door. The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all, consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that their now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.
88. 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.
89. 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.
90. 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.
91. 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. The plaintiff’s evidence was that she arrived for school in good time but had to move her car in the car park because of car park lining work going on there. That, notwithstanding, when she got into the school at 8.55am, she encountered Ms. Dempsey and was reprimanded by her for being late. Ms. Dempsey acknowledged in her evidence that it was not unusual for her to challenge or remind staff whom she believed were not on time, in these circumstances. The plaintiff felt particularly aggrieved because she felt she was in good time and that the rest of the staff were still in the staff room having breakfast. 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.
92. 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.
93. 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.
94. 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.
95. 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.
96. 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.
97. 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.
98. Accordingly, there will be judgment for the plaintiff in the sum of €255,276.