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. “