Employers Liability and Vicarious Liability: New Developments in the Courts

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1 Employers Liability and Vicarious Liability: New Developments in the Courts DESMOND RYAN BL Saturday 14 December 2013 INTRODUCTION Good morning. There have been a number of interesting and noteworthy judicial developments in recent months in the context of employers liability, both primary and vicarious. In my paper this morning I will analyse a selection of some of these developments in order to identify key trends and themes in the case law of the courts concerning each form of liability both in this jurisdiction and elsewhere as 2013 draws to a close. Amongst the most interesting primary liability developments are those which have occurred in the context of workplace bullying, harassment and stress, with three judgments delivered by the High Court (Cross J), two in favour of the plaintiff and the other in favour of the defendant. This area is, as recently confirmed by the High Court, merely [o]ne of the sub-aspects of [the employer s duty of care]. 1 The judgment in Kelly v Bon Secours Health System Ltd 2 is of interest for, inter alia, the references contained therein to corporate bullying and the consideration given to the earlier High Court judgment in Sweeney v Ballinteer Community School. 3 In strong contrast with the judgment in Kelly is the more recent judgment of the High Court (Cross J) in favour of the defendant in Nyhan v Commissioner of An Garda Síochána 4, with a clear emphasis in that judgment on objective analysis and the employer being entitled to take at face value the position presented by an employee as to his or her state of health. Finally, a still more recent judgment, Browne v Minister for Justice 5, involves a successful plaintiff win in this area and further develops the notion of corporate bullying in Irish law. There have also been other very significant developments of late regarding vicarious liability, particularly the decision of the UK Supreme Court in The Catholic Child Welfare Society v Various Claimants and The Institute of the Brothers of the Christian Schools 6 and that of the Court of Appeal in JGE v The Portsmouth Roman Catholic Diocesan Trust. 7 These judgments raise difficult questions about the circumstances in which 1 Per Cross J in Browne v Minister for Justice [2013] ELR 57, at [2.1]. 2 [2012] IEHC 21 (26 January 2012). 3 [2011] IEHC 131 (24 March 2011). 4 [2012] IEHC 329 (26 July 2012). 5 [2013] ELR [2012] UKSC 56; [2012] 3 WLR [2012] EWCA Civ

2 vicarious liability will be applied in relationships other than employment relationships and have effectively introduced a new area of focus to the vicarious liability analysis, namely the relationship-akin-to-employment-inquiry. Aside from developments in the substantive law, the last year has also seen a number of practical developments of relevance to those advising employers and employees in preventing and/or conducting litigation. The introduction of a new Code of Practice in relation to Harassment and Sexual Harassment, for example, will be of significance in advising employers and employees, particularly in terms of avoiding the imposition of vicarious liability in the context of the legislative equality framework. There have, in addition, been important developments concerning parallel claims in different fora arising from the same set of facts. Each of these developments will be considered in this paper. BULLYING, HARASSMENT AND STRESS AT WORK: DEVELOPMENTS AS OF DECEMBER 2013 Workplace stress, bullying and harassment has continued to give rise to extensive litigation in the last couple of years. Back in 2011, two high-profile stress and bullying cases were the subject of detailed High Court judgments 8 ; and in the last two years, the High Court (Cross J.) held in favour of the plaintiff in Kelly v Bon Secours Health System Ltd 9 and in Browne v Minister for Justice 10 and in favour of the defendant in Nyhan v Commissioner of An Garda Síochána 11. Procedurally, three key developments are also worth noting at this stage. First, there has been a practice change regarding the setting down for trial of these cases in the Non Jury List. Since last year, the position is that: All actions wherein the relief sought includes a claim for damages for personal injuries arising out of an allegation of bullying and/or harassment shall be set down for trial in the Non Jury List. 12 Another significant development is the publication of the High Court judgment in Stephens v Archaeological Development Services Ltd. 13 As will be very familiar to delegates attending this morning, the same set of facts concerning alleged bullying and harassment will frequently trigger multiple causes of action. For example, allegations of 8 Sweeney v B.O.M. Ballinteer Community School [2011] IEHC 131 (24 March 2011); O Toole v Co. Offaly Vocational Educational Committee [2011] IEHC 141 (15 April 2011). 9 [2012] IEHC 21 (26 January 2012). 10 [2013] ELR [2012] IEHC 329 (26 July 2012). 12 General Notices, 23 July 2012, PI Actions Bullying available at 13 [2010] IEHC

3 inappropriate behaviour in the workplace may give rise to a claim for discrimination before the Equality Tribunal, with parallel personal injuries proceedings in the Circuit or High Court. Similarly, a bullying complaint may result in a constructive dismissal case being brought before the Employment Appeals Tribunal in addition to a personal injuries action in the High Court. A key recent judicial authority is the decision of the High Court in Stephens v Archaeological Development Services Ltd. 14 Although the decision dates back to 2010, it appears to have only become publicly available in December The judgment will be an important reference point for practitioners making or meeting arguments concerning duplication of issues in the different fora, particularly in the context of loss of earnings claims in High Court litigation alongside unfair dismissal proceedings. (In Stephens, a stay was granted regarding the High Court proceedings pending the outcome of the EAT claim). A more recent decision that is also of significance in relation to litigation against employers arising from how an employee is treated in the workplace is the decision of Hedigan J in May 2013 in Cunningham v Intel Ireland Limited 15. There the plaintiff had issued personal injuries proceedings against her employer in the High Court in addition to instituting a claim for gender discrimination before the Equality Tribunal. In her brief outline of complaints attached to the Form EE1 submitted to the Equality Tribunal, the plaintiff claimed that the alleged discrimination significantly affected her health and wellbeing. Hedigan J observed that the plaintiff s personal injury claim appeared to relate to the same alleged damage to the plaintiff s health and wellbeing. The employer sought to have the High Court proceedings dismissed and in so doing it relied on both s. 101 of the Employment Equality Act 1998 and on the rule in Henderson v Henderson 16. Granting the application and dismissing the plaintiff s High Court claim, Hedigan J said: [I]t is clear from [the plaintiff s own pleadings and submissions in the two sets of proceedings that both her employment claim and her personal injury claim arise out of the same matters, i.e. alleged mistreatment in her working environment. This she alleges commenced on the announcement of her pregnancy, continued through her commencement of maternity leave, through that leave and culminated in her dissatisfaction with the way she was treated on her return to work. The plaintiff in issuing these personal injury proceedings after her employment equality complaints, in my view, drew an artificial distinction which does not stand up to analysis. 11. In terms of the reliefs sought, the claim in the personal injury proceedings is for compensation for the stress and the health problems arising therefrom. It is clear that such a remedy may be awarded by the Labour Court in the employment equality proceedings. See Ntoko v. City Bank [2004] ELR 116. In doing this, the Labour Court may choose to consider a complainant s medical reports in assessing the compensation to be awarded. See McGinn v. Daughters of Charity EDA9/ When she chose to create this artificial distinction in the one essential complaint to pre and post-august 2008 by issuing these personal injury proceedings, the plaintiff, in my view, breached the provisions of s. 101(2)(a) of the Employment Equality Act and breached the rule in Henderson v. Henderson. By confining her complaints in one set of proceedings these statutory 14 [2010] IEHC [2013] ELR (1843) 3 Hare

4 and common law requirements do not in any way limit the plaintiff s right to a remedy for those complaints. The Labour Court had and still has at its disposal ample jurisdiction to do so. In particular, as a lay litigant, the plaintiff is far better off having all of her complaints dealt with in the one set of proceedings. Thus the application of the defendant to dismiss these proceedings must be allowed. It is submitted that a number of elements of the specific factual matrix of Cunningham may limit the application of the decision in other cases of multiple claims. First, Hedigan J appeared to identify as a particular impetus for confining of the various elements of the proceedings to the Labour Court appeal the fact that the plaintiff was a lay litigant and, moreover, he noted that the defendant had stated unequivocally in open court in making its application to dismiss that it would not oppose the plaintiff bringing into her claim before the Labour Court her complaints dating from her announcement of her pregnancy. Secondly, the overlap between the two sets of proceedings would seem to have been particularly pronounced but in other cases it may be far easier to establish clear blue water between an Equality claim and a Personal Injuries action. That having been said, however, it is salutary to note the following observation by Hedigan J at the end of his judgment in Cunningham in which he said: 14. I would note finally that the practice here readily admitted of issuing proceedings and then leaving them lie for years until other proceedings are concluded is inconsistent with contemporary jurisprudence concerning the obligation of the courts to ensure the expeditious conduct of proceedings. It also noteworthy that both the Employment Appeals Tribunal 17 and the Labour Court 18 have recently relied on the approach in Cunningham so as to stay or strike out claims before those fora having regard to parallel claims having been instituted. Employers Liability for Bullying, Harassment and Stress at Work: The Position in December 2013 Before looking in detail at the most recent cases, it may be helpful to recall that the starting point in the case law in this area is, of course, the decision of the Queen s Bench Division of the English High Court in the Walker v Northumberland County Council 19, which was once again recently described as the landmark 20 judicial development in this context. Since Walker, it has been apparent that, in certain circumstances, employers may be held liable in negligence for stress-related illnesses suffered by employees as a result of workplace conditions and events. The last year also marked the tenth anniversary of the leading English authority in this context which is the case of Sutherland v Hatton 21, which was decided in In last 17 Morgan v Irish Horse Welfare Trust (UD 53/2012): see EAT case put on hold pending parallel High Court claim, Industrial Relations News, 4 December Jahan Company t/a Irema Ireland v Power (Labour Court Determination NO. EDA1326, 25 October 2013). 19 [1995] 1 All ER 737; [1995] 1 ICR MacLennan v Hartford Europe Ltd [2012] EWHC 346 per Hickinbottom J at [10]. 21 [2002] 2 All ER 1. 4

5 year s Irish High Court judgment in Kelly v Bon Secours Health System Ltd 22, in which judgment was delivered last year, Cross J described Sutherland as having clarified the law 23 in this area. In a recent decision, Hatton has been described as the seminal case laying out the legal principles governing cases of this type. 24 As is well known, Hale LJ (as she then was) set out in Hatton a number of practical propositions to be considered by a court in dealing with a case of occupational stress. These practical propositions have been approved as providing helpful guidance in the Irish courts. 25 In the English courts, there has recently been an important Court of Appeal judgment concerning causation in stress cases (addressing the question of the relevance of a claimant s marital difficulties in assessing loss of earnings flowing from a breakdown allegedly arising out of workplace stress). 26 There have also been other significant decisions on point in the past year at both Court of Appeal 27 and Queen s Bench 28 level. This continues, therefore, to be an area of rapid development in the judicial authorities. Whilst the Hatton practical propositions represent a valuable contribution to the development of the law and comprise highly useful practical guidance, it should be emphasised, as courts have emphasised, that they must not be read as having anything like statutory force. 29 Equally, it has been remarked that the 16 propositions in Sutherland do not necessarily offer an employer a scheme for avoiding civil liability for stress-related psychiatric injury. 30 That having been said, the Irish courts have consistently demonstrated a willingness to have regard to these propositions. Thus in the course of his judgment in Maher v Jabil Global Services Ltd, 31 one of the leading cases in this area, Clarke J stated as follows: In McGrath v Trintech Technologies Ltd, 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 LJ in Hatton v Sunderland which are designed to assist 22 [2012] IEHC 21 (26 January 2012). 23 At para. [3.12] of the judgment of Cross J. 24 McCarroll v Northern Ireland Housing Executive [2012] NIQB 83 (8 November 2012) per Gillen J at [40]. 25 See in particular the judgment of Laffoy J in McGrath v Trintech [2005] 4 IR 382. As noted above, Hatton was also referred to by Cross J in his recent judgments in Kelly, Nyhan and Browne. 26 Brown v London Borough of Richmond Upon Thames [2012] EWCA Civ 1384 (26 October 2012). 27 Brown v London Borough of Richmond Upon Thames [2012] EWCA Civ 1384 (26 October 2012). 28 MacLennan v Hartford Europe Ltd [2012] EWHC 346 (QB) (24 February 2012); King v Medical Services International Ltd [2012] EWHC 970 (QB) (12 March 2012); Yapp v Foreign & Commonwealth Office [2013] EWHC 1098 (QB) (3 May 2013) Per Lord Walker in Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089, [65]. Brenda Barrett, Psychiatric Stress: An Unacceptable Cost to Employers [2008] JBL 64, 77. Maher v Jabil Global Services Ltd [2008] 1 IR 25. 5

6 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. 32 Indeed, in McGrath v Trintech Technologies Limited 33, Laffoy J had set out a detailed analysis of the relevant legal principles relying significantly on the decision of the Court of Appeal in Sutherland v Hatton. She concluded as follows: 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/her working conditions and work load. 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, to the caveat of Lord Walker in the Barber case but one must be mindful that every case will depend on its own facts. 34 The Maher v Jabil Test This judgment of the High Court in Maher v Jabil Global Services Ltd 35 remains a leading Irish authority on point since the High Court (Clarke J) articulated a three-stage inquiry or test for assessing whether recovery lies in a case of workplace stress which has since been applied in subsequent cases. 36 In last year s Kelly, Nyhan and Browne decisions (analysed in today s paper), Cross J stated that he regarded the Maher v Jabil test formulated by Clarke J to be the best summary of the questions to be addressed 37. The plaintiff in Maher had claimed damages for stress arising from one period of alleged over work and one period of alleged under work. The Court was satisfied he had suffered personal injury which was caused by his work environment. In relation to the period of overwork, Clarke J concluded: [I]t 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 Internal citations omitted. [2005] 4 IR McGrath, at p [2008] 1 IR See in particular the judgment of the High Court (Laffoy J) in Berber v Dunnes Stores Ltd [2007] ELR 1. This judgment was reversed by the Supreme Court four years ago: [2009] IESC 10, [2009] ELR At para. [3.15] of the judgment of Cross J in Kelly; at para. [3.8] of the judgment in Nyhan and at para. [2.8] of the judgment in Browne. 6

7 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. In relation to the period of underwork, the Court concluded: 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. Clarke J was satisfied that the starting point for any consideration of liability in a case such as this was the consideration of three 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. Post-Maher v Jabil Developments in this area Claims relating to bullying, harassment and stress at work have continued to give rise to much litigation in the past couple of years. Two years ago, the two most significant cases in the Irish courts involved a plaintiff win in one (Sweeney) and a defendant win in the other (O Toole), whilst the stand-out cases thus far in show two plaintiff wins in Kelly v Bon Secours Health System Ltd (which involved detailed consideration being given to the Sweeney case of the previous year) and Browne v Minister for Justice 38 respectively, and a defendant win in Nyhan v Commissioner of An Garda Síochána 39. Before coming to analyse these cases, however, it is important to recall that at hearing before the Supreme Court in the leading case of Quigley v Complex Tooling and Moulding, 40 both parties accepted the definition of workplace bullying contained in paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order as an accurate 38 [2013] ELR [2012] IEHC 329 (26 July 2012). 40 Quigley v Complex Tooling and Moulding [2008] IESC 44, [2008] ELR 297, [2009] 1 IR S.I. No. 17 of

8 definition of bullying to be referred to when considering the employer s duty of care to its employees. This definition is 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. Having regard to the above definition, Fennelly J accepted the submission that bullying must bear the following characteristics: it must be repeated; it must be inappropriate, and it must undermine the dignity of the employee at work. Fennelly J was satisfied that the bullying complained of by the plaintiff in Quigley amply meets the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. He so found on the basis that the treatment of the plaintiff represented a unique amalgam of excessive and selective supervision and scrutiny of the plaintiff, unfair criticism, inconsistency, lack of response to complaint and insidious silence. This remains an extremely important point of reference in the context of considering whether cases in this regard satisfy the above definition of bullying: indeed, it was expressly noted and followed by the High Court in its three recent judgments in the past two years: Kelly, Nyhan and Browne, all considered below. The High Court judgment in Sweeney v Ballinteer Community School Against the background of plaintiff wins being reversed on appeal in the last couple of years in both the Quigley and Berber cases the more recent High Court judgment in Sweeney v Ballinteer Community School 42 is noteworthy in that it constitutes an example of liability being imposed in the context of bullying, albeit on very extreme facts (including the use of a Private Investigator). Two aspects of the case are particularly significant, in my view: first, the fact that aggravated damages were awarded; secondly, the fact that Herbert J was willing to impose vicarious liability for bullying. The extraordinary factual background to the case was well summarised by Herbert J in his description of a number of decisions taken by the school Principal concerning the plaintiff which resulted in escalating mutual distrust between them as disagreement followed disagreement. Herbert J found that the plaintiff came to believe that every action or omission on the part of [the Principal] whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her. It is notable that one of the witnesses in this case is reported in the judgment as having described the factual scenario at the root of the litigation as catastrophic, totally strange, unusual and unreal. Some extracts from the judgment of Herbert J will give a flavour of the aptness of this description! These include: I do not accept the bona fides of the explanation offered for the admitted entry by one of the college caretakers, acting on the instructions of Dr. C., into the plaintiff s office in B.C.C. by slipping the lock with a knife and, the moving of the contents of that office to the Home-School Liaison room. Absent any emergency, ie. fire or flood or, faced with an inability after reasonable and proper attempts to 42 [2011] IEHC 131 (24 March 2011). 8

9 contact the plaintiff and a pressing need in the interests of the college to have the rooms interchanged, what was done on this occasion on the instructions of Dr. C. was high handed and inexcusable ([11]) Between the 31st August, 2006 and the 27th March, 2007, the plaintiff was absent from work and furnished each week a medical certificate from her General Medical Practitioner, Dr. Philip McMahon, that she was suffering from work related stress. The quite extraordinary manner in which these certificates were furnished, - they were found by the clerical officers each Monday morning pushed under the door of the general office and not given or sent to the Deputy- Principal the person entitled to require and to receive them, - demonstrates in my judgment the continuing concern on the part of the plaintiff to avoid any risk of having to communicate personally with Dr. C., even to the extent of refusing to furnish these very important documents from her own perspective directly to management. The clerical officers further informed the court that each Monday morning a man or a woman would telephone the general office and state that the plaintiff would be absent from work that week. These callers never identified themselves to the clerical officers. ([14]) After this exchange the plaintiff told the court that she noticed that the door of the business studies room, about ten feet away, was open. She entered this room where a male colleague, (and one of the Teachers Union of Ireland College Committee), was teaching a class. She told the court that her purpose was to ask this teacher to watch while she went down the corridor as she felt stressed and afraid. I am unable to accept that this as the reason why the plaintiff went into her colleague s room. I am satisfied that she went there, not as Dr. C. perceived it to convey negative information about him in front of a class, but pursuant to her plan to involve a third party immediately in all confrontations which she might have with Dr. C.. I am satisfied on the evidence that this colleague was discomfited by the plaintiff s sudden intrusion into his class and was most anxious that she should not linger in the room. I accept this teacher s evidence that the plaintiff was quivering and appeared to be fighting back tears and had said to him, He is at me again, its happening again. I also accept this teacher s evidence that as they were speaking a knock came to the door and Dr. C. put his head into the room, beckoned this teacher over to the door and said to him You cannot have people invading your room, you d want to look after yourself. I am satisfied that this teacher, who had been a member of the Teachers Union of Ireland Committee that had spoken to Dr. C. in 2006, on behalf of the plaintiff, reasonably and rationally interpreted this statement by Dr. C. as a threat, that he would suffer some detriment for speaking to the plaintiff and not insisting that she leave his room immediately.. ([19]-][20]). I find on the evidence, with particular reference to a contemporaneous note made by Dr. C. on the 26th November, 2007, that as soon as he and the Deputy- Principal entered the room, the plaintiff, who had been standing beside a parent at a computer console, turned towards them saying loudly, Here s the Principal and the Deputy-Principal coming to bully me..the plaintiff then told the parents not to leave the room and to continue with their work. Dr. C. pointed out that he was the Principal of the College and insisted that they leave. One of the parents told the plaintiff to telephone the Department of Education and the plaintiff had replied that she did not know the number. The evidence clearly establishes that Dr. C. then said to this particular parent, Turn off that computer or I will call the gardaí. To this the parent responded, Well get them then. 9

10 In my judgment, the behaviour of Dr. C. towards the plaintiff on this occasion was oppressive and bullying. However extremely provocative the plaintiff s own behaviour may have been and however much her actions may have been interfering with the smooth running of the college on the 26th November, 2007, she should not have been publicly disparaged and humiliated by Dr. C. in front of the parents present. Her countermanding his direction to the parents to leave the computer room may properly be regarded as a amounting to scandalous insubordination. However, in my view it did not cause the bullying but was a consequence of it... ([27] [28]) Specific Legal Bases on which Liability was imposed in Sweeney Later on in his judgment, Herbert J set out clearly the legal bases on which he was prepared to impose liability on these facts: Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue. It is thus significant that Herbert J in the above passage makes reference to a wide range of discrete sources of the imposition of liability upon the defendant, viz.: Primary liability in negligence; Vicarious liability; Liability under the 2005 Act; Invocation of the Quigley precedent analysed above in this paper. Aggravated Damages Awarded As mentioned above, another noteworthy feature of this case is the fact that Herbert J was prepared to make an award of aggravated damages, commenting: In my judgment the behaviour of [the Principal] towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The Approach of the High Court in O Toole v County Offaly VEC 10

11 In contrast with the Sweeney case analysed above, the case of O Toole v County Offaly VEC 43 involved the plaintiff losing her case of alleged bullying, harassment and stress. Although the judgment of the High Court (O Neill J) does not analyse legal authorities in any detail, the case is an important reminder of the firm legal rule that an employee must bring to the attention of the Board of Management complaints regarding bullying, stress and harassment and pursue the procedures open to teachers at the local employment level. Despite the fact that the Judge rejected the plaintiff teacher s complaints of bullying and sexual harassment, the Court emphasised that the appropriate engagement with and application of procedures is an extremely important element of these cases. O Neill J said: Notwithstanding the fact that I have rejected the plaintiff s evidence in relation to her complaints and found that she was not sexually harassed or bullied by Mr. Mooney, she was, nonetheless, entitled, as indeed would any employee of the defendants, to make such complaints and to have them properly dealt with under the appropriate current procedures, by the defendants, as employers. If it could be said that the evidence identified damage or injury to the plaintiff caused by any actionable failure by the defendants in this respect, notwithstanding the lack of merit in the plaintiff s complaints, damages could arise. It is, of course, fair to say that there is a theoretical element to this conclusion, given that it would be highly unlikely and that a plaintiff could establish or that a court could identify separate injury or damage resulting from a procedural deficiency, in circumstances where the underlying complaint was without foundation. 44 In O Toole, the High Court did not accept that the plaintiff had correctly engaged with or pursued the procedures open to her and on this additional basis it rejected the entirety of the plaintiff teacher s claim. Thus O Toole further emphasises the cardinal importance in this type of litigation of properly bringing to the employer s attention the grievances complained of in good time. This principle is thus a key lesson from the case law. Sweeney applied in last year s decision in Kelly v Bon Secours Health System Ltd The Sweeney case was referred to in detail by the High Court again last year in one of the three of the latest published decisions in this area: the decision of Cross J in Kelly v Bon Secours Health System Ltd 45. There, Cross J referred to the analysis in Sweeney as most helpful. Thus, albeit that the facts of Sweeney were most unusual, it is significant that it has received detailed treatment by the High Court in subsequent case law, suggesting that the case constitutes a significant contribution to the body of judicial authority in this area. An interesting aspect of the Kelly case is the reference therein to corporate bullying, with Cross J summarising the plaintiff s case in the following terms: [T]he essence of the plaintiff s case is that the bullying and harassment came not merely from fellow employees but were in effect orchestrated or directed 43 [2011] IEHC 141 (15 April 2011). 44 Per O Neill J at [185]. 45 [2012] IEHC 21 (26 January 2012). 11

12 from the management of the defendant s company or what is sometimes known as corporate bullying. Later on in the High Court judgment, in the context of assessing the defendant s failure to adhere to correct procedures in terms of an appointment process, Cross J concluded that this amounted to corporate bullying and harassment and discrimination against the plaintiff and resulted in stress to her. As with Sweeney, the conduct of the defendant was such as to prompt criticism from the High Court Judge in terms of the motivation of hostility revealed by the defendant towards the plaintiff, which included the latter being frogmarched off the premises, an occurrence which Cross J described as being by any scale an extraordinary insult to her. 46 It is, however, significant to note that Cross J held that the plaintiff s acute depressive symptoms were not causally linked to the bullying, but that her other symptoms were related. General damages in the sum of 60,000 were awarded (a figure separate and distinct from damages awarded for a physical back injury sustained by the plaintiff). The judgment in Kelly thus constitutes an important contribution to this area of the law given not only the express finding of corporate bullying made therein, but also the significant level of general damages awarded. Writing last year in the Industrial Relations News, Carol Fawsitt describes the emphasis in Kelly on corporate bullying as potentially signalling a new departure. The Kelly decision, she argues, provides yet another impetus for grasping the opportunity to introduce legislation to deal with bullying at work. 47 Later decision of the High Court in Nyhan v Commissioner of An Garda Síochána 48 Further judicial guidance delivered by the High Court in this area is to be found in its judgment in Nyhan v Commissioner of An Garda Síochána 49 in July of last year, in which liability was not made out. The plaintiff claimed that he was treated in a "highly inappropriate manner and was subject to intolerable working conditions" leading to the Plaintiff s coming under the care of a consultant psychiatrist. The background to this was the murder of one Ms. Saulite, a parent of children at the centre of an abduction investigation in which the plaintiff had been heavily involved as an investigating Garda. After this shocking event the plaintiff then feared for his own life and advised the defendants of the stress of the adverse working conditions to which he had been subjected. The plaintiff s case was that the defendants effectively ignored and disregarded the plaintiff and that they failed to provide any reasonable level of help or support or protection to the plaintiff and accordingly the plaintiff felt he was isolated in An Garda Síochána. The plaintiff further 46 At para [9.16]. 47 Carol Fawsitt, Corporate Bullying A New Departure and a New Opportunity? IRN, 27 June [2012] IEHC 329 (26 July 2012). 49 [2012] IEHC 329 (26 July 2012). 12

13 alleged that the actions of the defendants intensified to the point where he was served with "discipline documents" to inquire as to whether the plaintiff was in possession of information or documents which meant he knew or ought to have known at the time of the existence of a real and immediate threat to the life of Ms. Saulite and failed to take measures that might be expected to avoid that risk. As a result of this disciplinary inquiry, the plaintiff believed he was being scapegoated. The plaintiff went on in the proceedings to allege that the Garda Commissioner was engaged in a "cover up" and the disciplinary proceedings were an attempt to protect more senior or other officers who in truth and in fact had and were in possession of specific threats to Ms. Saulite's life at a much earlier time. The plaintiff characterised the nature of the matters that were being investigated under the disciplinary procedures as an allegation that the plaintiff was guilty of manslaughter. The plaintiff alleged that he was not cleared of any wrongdoing until July 2008, over a year from the commencement of the disciplinary inquiry. In Nyhan, Cross J found that the response of Garda management to the plaintiff s repeated complaints had been reasonable. Whilst a number of incidents in terms of the plaintiff s treatment were described as unfortunate, very unfortunate and regrettable (including a delay on one year in conducting a disciplinary investigation against him and a delay of over two years in investigating a suspicious phone call made to his mother s home), Cross J expressly found that none of the defendants treatment of the plaintiff or their actions in dealing with (or not dealing with) the plaintiff s complaints constituted a breach of their duty of care. It is significant to note that in so finding Cross J expressly relied on the Supreme Court decision in Berber referred to above in today s paper in rejecting the views of Professor Mona O Moore of the ABC Centre that if an employee s concerns were not addressed by management to their satisfaction, that would amount to bullying. Cross J held: That is a conclusion that the court cannot accept. The fact of bullying is an objective one. Clearly, what may not be bullying to a robust employee may be bullying to somebody who is vulnerable. The failure of the defendants to give the plaintiff what he concluded to be a satisfactory resolution of his complaints is not and cannot of itself always amount to bullying. The test is as stated by the Supreme Court in Berber v. Dunnes Stores Ltd. [2009] 20 ELR at pp. 75 to 76: (i) The test is objective; (ii) The test requires that the conduct of both employer and employee be considered: (iii) the conduct of the parties as a whole and the cumulative effect must be looked at; (iv) the conduct of the employer complained of must be unreasonable and without proper cause and its effects 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. Significantly, the plaintiff in Nyhan had previously been diagnosed with PTSD as a result of a violent attack to which he had been subjected whilst acting in the course of duty some years previously. The plaintiff had subsequently returned to work and whilst Cross J accepted that this made him more vulnerable to stress, he found that the situation must be assessed on the basis that the Plaintiff had reported fully fit for work. As Marguerite Bolger S.C. has observed, that is reminiscent of the Supreme Court s observations in Berber about an employer not having to go behind a medical certificate confirming an employee s fitness to return to work Marguerite Bolger S.C., Paper delivered to Employment Bar Association, 25 October

14 More recent plaintiff win in Browne v Minister for Justice 51 In the latest of the published High Court decisions that of Browne liability was imposed in circumstances where Cross J made numerous findings of bullying and harassment both by more junior colleagues of the plaintiff and also by more senior management. The plaintiff s case was based on no less than twelve separate allegations arising from his treatment in the workplace at the hands of management described as deliberately orchestrating and organising the bullying. 52 What is particularly interesting, it is submitted, about this case is the specific examples it provides of instances of bullying and harassment expressly deemed to meet the Quigley-approved definition set out above in this paper, such as the following: 1. Cross J found that the continuing deprivation of the plaintiff s use of a police car by the defendants after a certain period was an attempt by the defendants to control and punish the plaintiff who was regarded as a source of trouble who had involved his solicitor in the expense issue discussed above, and that it was entirely unfair and an example of bullying and harassment by the defendants at a high level of management. 2. The publication of a leaflet attempting to implicate the plaintiff in a subversive campaign was part of a bullying and harassment campaign against the plaintiff seeking to undermine him in his position as a Detective Garda. 3. Cross J concluded that there was no basis for a criminal investigation in relation to a very modest overtime payment and found that, as a matter of probability, this investigation or threat of same was prompted by animus against the plaintiff by his superiors and part of the campaign to control him. Cross J therefore concluded that this was also was an example of bullying and harassment. 4. A separate allegation of bullying and harassment which was upheld involved the stealing of a number of very serious case-related documents from the plaintiff s locker. Cross J found that these items could only have been stolen by a member of An Garda Síochána as there was no suggestion of any break-in to the station. The Court held that this was evidence of a campaign by members of An Garda Síochána against the plaintiff in order to discredit him in the eyes of his superiors. Cross J went on to add: It is not clear who was responsible for this incident and it probably was some junior members of the force and the court does not accept that this campaign was necessarily orchestrated by the senior officers. However, the stealing of these items was clearly aimed at undermining and demonising the plaintiff in the eyes of his superiors and was an example of bullying against him within the definitions outlined above. It would have been clearly foreseeable that this action would have undermined the plaintiff s dignity and caused him distress and injury in his career as a garda. 51 [2013] ELR At [2.7]. 14

15 5. Cross J further identified as bullying and harassment the withholding from the plaintiff of his firearm over a lengthy period. The Court accepted that being a detective without his firearm was a serious impairment to the plaintiff s ability to function fully. Cross J found that the plaintiff s superiors were unfairly using the firearm to control the plaintiff and if possible to remove him from Kilmainham where they perceived him as a troublemaker, and that this amounted to bullying and harassment. Application of Maher v Jabil test in Browne Finding in favour of the plaintiff in Browne, Cross J held that it was reasonably foreseeable that both the actions of senior management and of the more junior gardaí would undermine and cause injury to the plaintiff. In terms of the Court s approach to quantum, it is interesting that, although the plaintiff had been out of work on stressrelated sick leave for only a two week period, the Court accepted evidence tendered on behalf of the plaintiff to the effect that he had suffered, inter alia, a reactive depression of moderate to severe nature which was ongoing for twelve years. General damages of 55, were awarded; with separate awards made for defamation and loss of earnings. Browne is therefore a potentially instructive case in setting out a number of examples of bullying and harassment which can be made out in a large organisational context such as An Garda Síochána. The references in the judgment to the plaintiff being regarded as a troublemaker recall the factual backdrop to last year s Kelly case and appears to signal the potential of such corporate bullying claims to be made with increasing frequency in future cases. NEW CODE OF PRACTICE ON HARRASSMENT AND SEXUAL HARASSMENT INTRODUCED LAST YEAR Separately, another significant development in the health and safety context in the past year is the introduction of a new Code of Practice in relation to Harassment and Sexual Harassment. This has arrived in the form of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order and was prepared by the Equality Authority with the approval of the Minister for Justice and Equality and after consultation with IBEC, ICTU and other relevant organisations representing equality interests. The stated aim of the Code is to give practical guidance to employers, employers organisations, trade unions and employees on: what is meant by sexual harassment and harassment in the workplace; how it may be prevented; and what steps to take if it does occur to ensure that adequate procedures are readily available to deal with the problem and to prevent its recurrence. The provisions of this code are specifically described as being admissible in evidence and they may be taken into account in any criminal or other proceedings before a court and under Part VII of the Employment Equality Act, and also in proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal and a rights commissioner. 53 S.I. No. 208/

16 Although a detailed treatment of this new Code is beyond the scope of my paper this morning, it may be helpful to set out some noteworthy aspects of the new Code: The Code reflects the legal changes brought about by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and expressly refers to civil status as opposed to marital status as one of the nine protected grounds in the context of the Employment Equality Acts. As regards the protection against age-related discrimination, the Code defines the scope of the age ground as applying only to employees over the maximum age at which a person is statutorily obliged to attend school. Significantly, there is no upper age limit of 65 in the new Code (which had applied previously). The Code sets out very clearly the obvious but often overlooked point that bullying which is not linked to one of the discriminatory grounds is not covered by the Employment Equality Acts. This new Code of Practice will be an important reference point in advising employers and in managing litigation relating to harassment at work, particularly since demonstrating application of the Code within the workplace may enable a defendant employer to escape liability under the legislation and/or the common law. DEVELOPMENTS IN VICARIOUS LIABILITY: THE RECENT DECISIONS OF THE COURT OF APPEAL IN JGE AND OF THE UNITED KINGDOM SUPREME COURT IN CATHOLIC CHILD WELFARE SOCIETY The law of vicarious liability is on the move. 54 The above quotation as to the pace with which vicarious liability principles are changing is well borne out when one considers that the latest United Kingdom Supreme Court decision from November 2012 follows on from another very significant vicarious liability decision of the Court of Appeal last summer. 55 The key point about these developments is the changes they signal for the question of when non-employment relationships will nevertheless give rise to vicarious liability. By way of very brief background, traditional orthodoxy requires that two questions be addressed in relation to vicarious liability: first, that the relationship between defendant and tortfeasor is one that attracts vicarious liability, traditionally that of employer and employee; and secondly, that the tort was committed in the course of that employment. 56 As is well known, there has been a very influential body of case law in the common law world concerning the second of these elements, particularly in the context of child sexual abuse. Indeed, in this jurisdiction the Supreme Court in both O Keeffe v Hickey 57 and Reilly v Devereux 58 recently considered many of these international 54 Per Lord Phillips in The Catholic Child Welfare Society v Various Claimants [2012] UKSC 56, [2012] 3 WLR 1319, at [19]. 55 JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ For detailed treatment see the new edition of McMahon and Binchy, Law of Torts (4 th ed., Bloomsbury Professional, 2013), Chapter [2009] 2 IR