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PERSONAL INJURY - BULLYING

If an employee believes that he or she is being bullied at work this in itself will not give rise to a cause of action. It is only if he or she has suffered an identifiable psychological or injury, or has been forced out of their employment as a result of bullying.

Employers owe a common law duty to take reasonable care to ensure their employees health and safety at work. This duty developed in the context of physical injury to an employee, and there are long established and well worked out principles governing negligence and the liability of employers in relation to this form of injury. With the rise in the understanding of the health hazard which bullying and stress pose for an employee, employees have in recent years begun to bring claims for mental injury as opposed to physical injury. The Courts have had to develop and apply the principles of law which were worked out at common law in relation to physical injury to the new claims for work related stress injuries and for injuries caused bullying.

The scope of an employer's duty of care at common law is follows;

• Duty to employ competent employees

• Duty to provide safe plant and equipment

• Duty to provide safe place

• Duty to provide a safe system of work

If this duty of care is breached than an employer will be liable in negligence. Liability in negligence depends on three inter-related elements:-

a duty to take care

a failure to take the care which could reasonably be expected in the circumstances

as a result foreseeable damage must be suffered

The issues of reasonableness and forseeability are key ones. An employer will not be found liable if they have acted as a reasonable and prudent employer would have done. What is reasonable depends on all the circumstances of the case, and magnitude of the risk, the seriousness of any potential injury and the costs of preventing that risk. Neither will the employer be liable if the ultimate damage caused to the employee was not foreseeable. It is also important that there is a connection between the breach of the duty of care and the damage suffered. In other words, the damage suffered by the employee must be directly caused by the actions (or lack of action) of the employer.

Sutherland v. Hatton [2002] EWCA Civ 76

This is a single composite decision covering four separate actions taken by unconnected

parties in respect of occupational stress. In her judgement, Lady Justice Hale accepted the view that psychiatric injuries were potentially enormously serious, and most importantly, set out the legal principles governing recovery for psychiatric injury. Although this was a matter of stress, the principles apply equally to all forms of psychiatric injury.

Lady Justice Hale said that liability in negligence depended on three interrelated requirements, the existence of a duty to take care, a failure to take the care which could reasonably be expected in the circumstances and damage resulting to the person from the failure of that duty to take care.

She went on to lay down 16 what she calls 'practical propositions'

1. There were 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. The ordinary principles of employer's liability apply.

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)

3. Forseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

4. The 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

(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 jobs? Or are there signs that others doing this job are suffering 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 enquirers 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 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; 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 could and should have taken before finding him in breach of his duty of care.

14. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress had caused the harm.

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.

In 2004 the House of Lords expressly approved the general statement of the law set out by the Court of Appeal in Sutherland v Hatton CA 2002 (above), but with the important rider that the employer has a duty to be pro-active and not merely pro-active.

Quigley v Complex Tool [2008] ELR 297

An important decision was handed down by the Supreme Court in July of 2008 which has the effect of tightening up the law on claims for personal injuries due to bullying and stress. The facts of Quigley v Complex Tool and Moulding Ltd are straightforward enough. Mr Quigley alleged that he was bullied at work and ultimately dismissed and that this had caused him a personal injury. In the High Court, he was awarded €75,000 by Mr Justice Lavan. However, the employer succeeded in its appeal to the Supreme Court and the judgment of Lavan J was overturned on the basis that there was no evidence that the bullying at work had caused the personal injury.

In its judgment the Supreme Court were happy to accept that Mr Quigley had been bullied within the meaning of the Code of Practice on Workplace Bullying. It also affirmed that the employer had been in breach of its duty to the employee. The Supreme Court accepted further that the Plaintiff was suffering from depression. However, it held that Mr Quigley could not succeed in his claim because there was no proof that his depression had been caused by is bullying at work, as opposed to his dismissal. It also affirmed the settled law in this area, as accepted by the parties to the action, that a plaintiff could not recover damages for any personal injuries suffered as a consequence of dismissal from employment as opposed to his treatment while employed.

What is interesting about this case is that, as the Supreme Court put it, 'in spite of the comparative novelty of the cause of action, the Court has not been asked to decide any principles of law'. This indicates that the legal principles on the nature of the wrong of harassment or bullying and the standard to be applied have now become generally accepted. However, the importance of this case is the emphasis it places on the direct link between the injury suffered and the breach of duty. Even though the Supreme Court stated that the employer was in clear breach of its duties to its employee in the way he was treated at work, because that breach did not cause the ultimate injury, the plaintiff could not recover. Quigley therefore demonstrates the weakness of relying on a personal injury approach to deal with claims of bullying or harassment. No matter how badly an employer treats an employee there will be no stand alone cause of action. Thus the resilient and emotionally stable employee will have no cause of action for personal injuries.

Berber v Dunnes Stores [2009] ELR Vol 3

The Supreme Court delivered its judgment in Berber v Dunnes Stores on 12th February 2009 overturning the decision of Laffoy J in the High Court. This is an important decision which deals with two areas of law which are increasingly the source of litigation, the contractual duty to act with mutual trust and confidence, and liability in contract or tort for psychiatric injuries caused by stress at work.

The plaintiff commenced his employment with the defendant as a trainee manager in April 1980 and was thereafter employed as a store manager at various locations. He moved from store management to buying in 1988 and remained in buying until late 2000, when he was requested by management to transfer back to store management in the defendant's Blanchardstown store. The plaintiff agreed to this transfer on the basis of assurances that he said had been given to him by the defendant to the effect that he would be 'fast-tracked" through the store management department so that he could be appointed store manager or regional manager within six to 12 months. A disagreement subsequently arose in relation to the transfer, the terms of which the plaintiff considered to be inconsistent with the assurances he had been given; this resulted in his refusing to move which in turn gave rise to his being suspended from work by the defendant. At this juncture the plaintiffs solicitors wrote to the defendant setting out the plaintiffs understanding of the assurances he was given by the defendant, and further alleging that the defendant's conduct towards the plaintiff and the stress which it had caused had resulted in his becoming ill. Although the plaintiff did subsequently report for work in the Blanchardstown store at the end of December 2000, he ultimately spent very little time there due to various periods of sick leave and annual leave. The plaintiff wrote to the defendant claiming that the defendant had repudiated his contract of erriployment and that his contract was at an end. He specifically referred to a disagreement with the store manager and to his medical advice that, in the interests of his health, he should cease working in the environment immediately. The plaintiff sought, inter alia, a declaration that the defendant had unlawfully repudiated his contract of employment and further sought damages for (1) breach of contract, the essence of this aspect of his claim being that the plaintiff was constructively and wrongfully dismissed by the defendant; (2) personal injuries, this aspect of his claim being formulated both in contract and in tort; and (3) defamation, as regards the incorrect description of the plaintiff as a "new trainee" in a managers' weekly roster.

Laffoy J in the High Court awarded damages for breach of contract and personal injuries but not for defamation. The employer appealed and the Supreme Court allowed the appeal and set aside the judgment of Laffoy J. The judgment is well written and the applicable law in both of these areas is clearly and carefully set out.

The Supreme Court first considered the claim of breach of contract, and affirmed that 'there is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence between them'. However, it emphasises three elements of this obligation which have perhaps hitherto been highlighted. First, that with regard to the mutuality of the obligation the impact of an employee's behaviour is also relevant. Second it also stated 'it must not be forgotten, however, that the implied term applies to both the employer and employee. Third, the Supreme Court stated that the test is an objective one.

The Supreme Court then stated that issue to be decided was whether the employer took appropriate steps to protect the employer and employee relationship. It set out that the test is whether

'the conduct of the employer complained of [is] unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.'

Applying this law, on the facts the Supreme Court held that the employer had not acted unreasonably. Key to the Courts findings seems to have been the fact that until 7th December 2000, that is after some of the events complained of by Berber had occurred, they it was not on notice that Berber was suffering from stress, and that in early 2001, Berber had in fact been assessed as fit for work by his medical advisers. The Supreme Court also relied on case law setting out the obligations of an employee to obey the lawful and reasonable orders of his Master, and the fact that the legal consequences of that breach are dismissal. It held that the employer had not dismissed Berber notwithstanding his refusal to obey orders. In summary, therefore, Dunnes had not breached Berbers contract of employment.

The change in emphasis of the Supreme Court here is significant. While affirming the general principles of law applicable to breaches of mutual trust and confidence, it placed a huge emphasis on the obligation of the employee to act reasonably. Emphasising the objective nature of any tests for breach of contract also makes the hurdle higher for the employee to jump. Finally and surprisingly an affirmation of case law which casts the duties or employer and employee in terms of Master and Servant, perhaps indicates a fundamental change of perspective and a recasting of the mutual duties of employer and employee.

The remaining portion of the judgment considers the personal injuries aspect of Berber's claim. Unsurprisingly, as the Supreme Court held that the employer had not behaved unreasonably and breached Berber's contract of employment, it held that the employer had not acted unreasonably and breach its duty of care to Berber. In arriving at this conclusion, the Court affirmed Hatton v Sutherland [2002] 2 All ER 1 and the legal principles set out by Lady Justice Hale. The legal principles applying to liability in negligence for psychiatric injury can now be said to be well settled, (1) there must be a duty to take care (2) there must be a failure to take the care which can reasonably be expected in the circumstances (3) damage must be suffered as a result of that failure.

Applying the law to Berbers claim, the Court held that causation of a psychiatric injury was not at issue. However, it held that there was not failure to take reasonable care. Relying on the older case of Stokes v Guest Keen and Nettlefold (Bolts and Nuts) limited [1968] 1 WLR 1776, the Supreme Court linked a test of forseeability to the failure to take care in the following manner 'What is reasonable depends upon the forseeability of harm, the magnitude of that harm occurring, the gravity of the harm which may take place, the cost and practicality of preventing it, the justifications for running the risk'. On analysis of the facts before it, the Court found that Dunnes had responded reasonably to each incident as it arose and that each incident failed on the test of forseeability. Thus the injury sustained by Berber being unforeseeable, his claim based on breach of duty must fail.

For further information please contact Dalippe Lalloo – dalippe@LACS.ie

Disclaimer

This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Lalloo & Company Solicitors for any action taken in reliance on the information contained herein. Any and all information is subject to change

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