Personal Injuries Actions against Employers for non-physical injuries:
The key aspects of initiating a claim against an employer for workplace generated psychological personal injuries are established in the cases of Maher v Jabil, Quigley v Complex Tooling and Moulding Ltd, whereby a claimant must have suffered an injury to his/her health as opposed to ordinary occupational stress. Such an injury, if not of a direct physical kind must amount to an identifiable psychiatric injury. That injury must be attributable to the workplace. The harm suffered to the claimant must have been reasonably forseeable in the circumstances.
The personal injury must have been sustained as a result of the employer’s breach of duty to the employee. Even if the claimant has suffered such an injury, it may not be found to have been reasonably foreseeable as this particular part of the test has, in case law, been shown to be quite difficult to establish. For cases to succeed, it usually requires some clear notification to the employer of the employee’s health issue, or risk of it – thus contemporaneous notice to the employer at the time of the issue to occurring is critical. It is far more difficult to succeed with any claim before the Civil Courts for a psychological personal injury, if the issues whish are alleged to have caused the injury to the claimant are made known retrospectively.
The employer has a duty of care in tort towards the employee, and pursuant to the Safety, Health and Welfare at Work Act 2005 in relation to the safety, (physical and mental), of the employee. This statutory duty has been found to clearly extend to the duty to preven
t bullying and harassment as was established in the cases of Shanley v Sligo CC; Sweeney v Ballinteer College. The Supreme Court in Quigley v Complex Tool Moulding and most recently in Ruffley v Board of Management of St Anne’s School has endorsed the definition of bullying as set out in the Industrial Relations Act 1990 (Code of Practice detailing procedures for addressing bullying in the workplace) (Declaration) Order 2002 as “an accurate statement of the common law duty of care”:
“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 be 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”. The Supreme Court in Ruffley made clear that each element of the test must be satisfied to establish “bullying”.
Failure by an employer to act appropriately/expediently following work place bullying/harassment by a claimant’s colleagues, would deem the employer vicariously liable in the event that the test as established in ruffle is satisfied. Thus, it is crucial from an employer’s perspective that appropriate mechanisms are in place in order to investigate inappropriate behaviour in the workplace.
This area of law is a considerably more difficult area to succeed with than a more obvious physical personal injury. A medical report from a qualified mental health professional is required before any case can properly be assessed by your legal advisor. Employees have two years from the date of injury/or knowledge of the injury to initiate a claim against their employer.
About the author: Kevin Sherry is an Associate Solicitor in our Employment Law Unit and can be contacted at ksherrry@dgod.ie
