Court of Appeal: Company that employed cleaning supervisor at Limerick hospital failed to provide safe place of work

About this case:

• Citation:
  [2018] IECA 287
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Michael Peart

Allowing the woman’s appeal, Mr Justice Michael Peart found that the trial judge erred in characterising her case as one of work-place bullying.

Background

Geraldine McCarthy was employed by ISS Ireland Limited as a cleaning supervisor at the Mid-Western Regional Hospital in Limerick where she worked for over 25 years.

Ms McCarthy claims that there were five separate incidents “in which other cleaning staff whom she supervised, acted in an aggressive, threatening and abusive manner towards her” and over time, the cumulative effect of these incidents “caused her such severe stress and anxiety (including PTSD), humiliation, pain and suffering that she was compelled to leave her employment”:

1. In May 2009, a cleaner under her supervision accused her of making complaints in a work audit. The cleaner was accompanied by her husband, who pinned Ms McCarthy against the wall and threatened her – putting her in fear that he would hit her. The incident was reported and Ms McCarthy went on sick leave until September 2009, but she did not hear anything from ISS about steps taken following her report.
2. In January 2010, a male employee under her supervision shouted into her face, and behaved in an intimidating and threatening manner towards her. Again she was afraid he was going to hit her, and again she reported the incident but did not hear anything further from ISS.
3. In June 2010, another male employee shouted and roared at her in public and behaved in a threatening and abusive manner. Again she reported the incident but did not hear anything further from her employer.
4. In July 2010, Ms McCarthy was roared and shouted at by another male employee, and the following day was asked by her superior if she would take redundancy. A few days later her superior asked if she was related to a Limerick family notorious for criminality, and suggested that ‘things were going to get very difficult’ for her.
5. In February 2011, an employee shouted and roared at her in front of her manager, and again ISS did not contact her further after she reported the incident.

Ms McCarthy contends that by not taking sufficient action, ISS “allowed a situation to prevail” whereby the staff she supervised “felt able to behave in this abusive, threatening and aggressive manner… with no fear that there would be consequences for them”.

Having failed to take the proper steps, Ms McCarthy contends that ISS “was in breach of its duty of care to the plaintiff to provide a safe place of work, and that as a result of such breach she suffered personal injuries, loss and damage”.

High Court

In the High Court, President Nicholas Kearns (as he then was) dismissed Ms McCarthy’s personal injuries claim. In an ex tempore judgment, President Kearns found that Ms McCarthy had not made out her claim of negligence against ISS – noting that each incident was perpetrated by a different employee, and there were temporal gaps between each incident.

While sympathising with Ms McCarthy and describing her as a very genuine person, President Kearns opined that there was nothing that her employer could reasonably have done, and that it was ‘and unfortunate episode’.

Stating that Ms McCarthy may have been particularly vulnerable as a result of the break-up of her marriage, President Kearns said that the incidents did not strike him as those which would ‘in the ordinary course cause a person to suffer as [Ms McCarthy] claims to have suffered”.

Court of Appeal

In the Court of Appeal, Ms McCarthy said that the trial judge erred in characterising her claim as one of work-place bullying, and dismissing her case on the basis that she had not established bullying.

Ms McCarthy presented her case as one of negligence on two different bases:

1. Individual tortious acts by ISS employees (e.g. assault), for which ISS was vicariously liable
2. Failure to provide a safe place of work

Justice Peart stated that he would dismiss Ms McCarthy’s appeal in so far as her reliance on vicarious liability for the incidents. However, considering the alleged failure to provide a safe place of work, Justice Peart said it was reasonable to consider that an employer of a supervisor like Ms McCarthy “should have a particular duty of care towards a supervisor, and to anticipate that such conflict might occur, and to have procedures in place to minimise such conflict and to deal with it when it occurs so as to prevent as far as reasonably possible any recurrence”.

Considering a report prepared by an expert for Ms McCarthy which was critical of ISS’s failure to act on foot of the first complaint and thereafter, Justice Peart explained that this evidence was not contested by the ISS– indeed the defendants had no intention to call evidence as they did not have any evidence to contradict the claims.

Justice Peart said that it was clear that ISS failed to take reasonable steps to protect Ms McCarthy from recurrence where it was evident that these were a cause of significant stress, anxiety and fear. In light of the expert report, there was uncontroverted evidence that ISS had no policies and procedures in place to deal with issues of this nature, and therefore breached its duty of care by failing to provide a safe place of work – taking into account her particular role as a supervisor.

Finding that ISS was negligent, Justice Peart said that he would allow the appeal and remit the case against ISS to the High Court for a determination of the issues of causation and damages.

• by Seosamh Gráinséir for Irish Legal News