Barry Crushell

A recent decision delivered by the Court of Appeal, in the matter of Geraldine McCarthy (the Employee) versus the ISS Ireland Limited (the Employer) and Another (see: [2018] IECA 287), has reaffirmed the generally accepted principle that employers must provide a safe place of work, free from bullying and harassment, and that a failure to do so may leave them open to a claim for negligence on their part, by current, or former, employees.

The Law

The duty of care under the common law includes the general obligation to provide a safe place of work. What comprises the concept of safety in any particular case will vary depending on the nature of the work and of the work place. Broadly speaking, where it is reasonably foreseeable by the employer that when carrying out their lawful duties in the course of their employment there is a foreseeable risk to which the employee will be exposed, the employer is under a duty to take all reasonable steps to protect the employee against it so that no injury is caused. All work places have risks that must be anticipated and protected against by the employer. The employer must consider each and take reasonable steps to protect against the risks posed to each category of employee.

Background

At the relevant time the Employee was employed by the Employer as a cleaning supervisor at the Mid-Western Regional Hospital at Dooradoyle, Limerick, under the control of the HSE. She claimed that between May 2009 and February 2011 there were five separate incidents in which other cleaning staff whom she supervised, acted in an aggressive, threatening and abusive manner towards her, mainly by shouting and by other aggressive behaviour during the course of their employment, and over time thereby caused her such severe stress and anxiety (including post-traumatic stress disorder), humiliation, pain and suffering that she was compelled to leave her employment. She alleged that following the first such incident she reported same to the Employer, but that no particular action was taken to prevent a recurrence. The Employee asserted that by not taking any sufficient action following her complaint, and her subsequent complaints, the Employer allowed a situation to prevail in her work place whereby the cleaning staff whom she supervised felt able to behave in this abusive, threatening and aggressive manner towards the Employee, with no fear that there would be consequences for them.

A commissioned report (the Report) addressed the case not only in terms of harassment and bullying, but also as to the employer’s duty of care to provide a safe system and place of work, and to prevent injury to its employees, including to the mental state of employees which can be adversely affected by stress. The Report was critical of the Employer’s failure to investigate the Employee’s complaints. The Report also referred to case law regarding the scope of the employer’s duty of care to provide a safe system of work, and to the potential liability that employers have in relation to work related stress, and that this duty extends also to the mental health of the employee. The Report referred to cases which have held that where an employee shows signs of stress in the course employment, the employer may be found negligent in failing to take appropriate steps to eliminate the cause of the stress

The Employee accepted that each of the five particular incidents which she had recounted were perpetrated by different staff members, and that they were not acting in any coordinated way or in concert. She also accepted also that a considerable time elapsed between each such particular incident. She accepted also that the first incident happened ‘out of the blue’ so to speak, and that the Employer could not reasonably be expected to have anticipated or foreseen it.

However, it is the failure of the Employer to have acted appropriately to prevent a recurrence following the Employee’s first complaint, and subsequent failures, that was found to constitute negligence on its part, whereby the Employee suffered personal injuries as a result of the particular incidents on a cumulative basis, and the atmosphere of intimidation that prevailed in her work against her, and which put her in fear.

Conclusion

The nexus of the Employee’s case against the Employer, was that having made a complaint to the Employer in the aftermath of the first incident, combined with the failure to act even after subsequent complaints, no steps were taken to prevent a recurrence, and that this failure led to a culture in the workplace where aggressive, abusive and threatening behaviour towards the Employee, as their supervisor, was allowed to occur with impunity to the perpetrators, and that the incidents themselves and the atmosphere of fear and intimidation towards her led cumulatively to her suffering such fear, stress and anxiety that she was forced to leave her employment.

The duty of care does not extend to ensuring that no recurrence ever takes place. That would be too high a standard to be expected. But employers are obliged to take reasonable steps to protect their employees from a recurrence where it was evident to them that these were a cause of significant stress, anxiety and fear to their staff.

• Barry Crushell is partner and chief operating officer for European operations at Tully Rinckey Ireland. View his profile here.