It is submitted by counsel for the plaintiff that when an employee suffers from an illness cause by his pre-dismissal unfair treatment he has a common law cause of action which precedes and is independent of, his subsequent dismissal. In support if this submission, counsel for the plaintiff referred to the recent English decision of Eastwood & Williams v Magnox Electric Plc ,[2004] UK House of Lords 35.
In this case, the plaintiffs commenced proceedings for negligence and breach of contract against their former employers. Both men brought unfair dismissal proceedings which were settled. In their common law proceedings, which were considered by the House of Lords, they alleged they suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the disciplinary process.
Both the Eastwood and Williams claims were dismissed by the High Court and then the Court of Appeal on the basis that all the circumstances attending their dismissals were covered by the Employment Tribunal.
However the House of Lords unanimously overturned the Court of Appeal and ruled that all three claims could proceed. Lord Nicholls of Birkenhead states at paragraph 27 that ; -
["…"]
In such cases, the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over."
Lord Nicholls, at paragraph 13, described the statutory code of unfair dismissals as providing "a floor and not just a ceiling".
Counsel for the plaintiff submitted that the decision in Eastwood is not inconsistent with the law on unfair dismissals in this jurisdiction. I take the view that this would seem to be the preferable interpretation. It has not been proved by the defendant that the injuries suffered by the plaintiff on account of harassment in the workplace were not a separate cause of action to the plaintiff's unfair dismissal action.
Counsel for the defendant submitted that the injury to the plaintiff was caused by the dismissal and therefore it falls inside the remit of the EAT. In support of this submission, counsel for the defendant referred to the decision of the House of Lords in Johnson v. Unisys Limited, [2001] 2 All ER 801 which looked at the interaction between statutory unfair dismissal claims and claims for damages arising out of dismissal. In that case, the plaintiff, who had been the beneficiary of an award from a statutory industrial tribunal, which had upheld his complaint that he had been unfairly summarily dismissed, initiated a civil action against his employer for breach of contract and negligence alleging that the manner of his dismissal had caused him to suffer a nervous breakdown and had made it impossible to find work.
The House of Lords held that an employee had no right of action at common law to recover financial losses arising from the unfair manner of his dismissal.
Johnson has been quoted with approval in this jurisdiction by Carroll J. in Orr v. Zomax Limited (unreported High Court, 25 th March, 2004).
Counsel for both the defendant and the plaintiff referred to the recent judgement of Laffoy J in McGrath v. Trintech, (Unreported High Court, 29 th October 2004). Here one of the issues before the Court was whether this principle could accommodate the implication into the contract of a more specific term that the plaintiff would not be dismissed without due cause or without reasonable notice. In rejecting this argument, Laffoy J analysed the decision in Johnson v. Unisys Limited and at page 16 states ;-
It is my opinion, however, that the argument being made in this case is different in that the plaintiff, unlike in McGrath v. Trintech , does not seek to challenge his dismissal but rather contends that the conduct of the defendant during the course of his employment was such as to amount to a breach of an implied duty to maintain trust and confidence during the employment relationship and this caused him injury.
In the plaintiff's case the remedy ordered by the EAT was re-engagement. Accordingly it was submitted that there is no basis for precluding the plaintiff in these proceedings from claiming compensation for personal injuries. In doing so, he cannot be accused of having "a second bite at the cherry", as per Nicholls LD in Eastwood at paragraph 23.
In my opinion, the question of what loss the EAT can award compensation for is not relevant as evidence has been given that the EAT did not look at the plaintiff's claims of harassment during the appeal. Under Section 7 (1) ( c ) Unfair Dismissals Act 1977, the Eat cannot award compensation for anything other than financial loss in an unfair dismissal claim (save in exceptional circumstance where if there is no financial loss, the EAT can award compensation limited to a maximum of 4 weeks pay).
The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in the treatment of him by the servants of the defendant during his employment with the defendant.
Given this, I would accept the plaintiff's argument that the claim for injuries resulting from harassment in the workplace is a separate and distinct cause of action to his claim for unfair dismissal.
Duty of Employer to Protect Employee from Bullying in the Workplace
Second, it falls to be decided whether the defendant was in breach of it duty to the plaintiff as an employee to provide a safe place of work by exposing the plaintiff to bullying in the workplace, and that by being in breach of this duty the defendant has caused the plaintiff to suffer personal injuries.
Employer's Duty of Care
Under common law an employer must take reasonable care for the health and safety of its employees. An employer is also liable for the acts of its clients or customers of the business, in so far as such acts may affect the health and safety of its own employees. These obligations have been further defined in legislation. The Safety Health and Welfare at Work Act 1989 ("the 1989 Act") and the Safety, Health and Welfare at Work Regulations 1993 impose an obligation on every employer to provide systems of work that are, as far as is reasonably practicable, safe and without risk to health. This duty of care is implied into the contract of employment and breach of this duty may be treated as a breach of that contract.
Hederman J in Kennedy v Hugh Dairy Limited [1989] ILRM 117 framed the general duty of care owed by an employer to his employee as whether the employer had taken reasonable care for the safety of his employee or had he subjected him to unnecessary risks.
The legislature has also placed a similar duty of care of employers. Section 6(1) of the Safety Health and Welfare at Work Act 1989 states that:-
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees".
It is the submitted by the plaintiff that the defendant had not taken reasonable care for the plaintiff's health.
It has been a fairly recent movement towards the thinking that an employer must take care not only of the physical health of their employers, for example by providing safe equipment, but also must take reasonable are to protect them against mental injury, such as is complained of by the plaintiff in this case.
It follows on from this that employers now have an obligation to prevent their employees from such that would cause mental injury, i.e. stress, harassment and bullying in the workplace.
That the common law recognises that employers can be liable for bullying is reflected in McMahon & Binchy, Common Law of Torts, 3 rd Edition. At paragraph 18.80, the authors state that:-
"An employee may be personally liable for sexual harassment or bullying of an employee, either on the basis that the employer ought to have been aware of the offending employee's propensity to act in this way or on the basis of an unreasonable failure to provide a safe system of work".
In this case, the plaintiff has given evidence of treatment by servants of the defendant which the plaintiff claims amounted to bullying in the workplace, and by not preventing such as is claimed by the plaintiff, the defendant, as employers, were negligent and in breach of their duty.
In the Code of Practice published pursuant to the provision of the Industrial Relations Act 1990, "bullying" is defined as follows:-
The defendant submitted that the treatment complained of does not amount to bullying and that the incidents complained of were isolated and that therefore they could not amount to bullying as defined in the Code of Practice.
The plaintiff complains of various incidents, which have been set out above, which range from being refereed to as "granddad", aspersions being cast by the Plant Manager on his ability to do his job, and general intimidating behaviour by the Plant Manager.
In the High Court case of Kerwin v. Aughinish Alumina Limited , O'Neill J compensated the plaintiff for stress and health problems he had suffered as a result of intimidation which centred around his supervisors.
From the evidence of the plaintiff, who states that this treatment made him feel humiliated, in conjunction with the Code of Practice definition of bullying, the only conclusion that can be reached is that the treatment does amount to bullying. These were not isolated incidents, as claimed by the defendants but all together amounted to a campaign of bullying which had repercussions on the mental health of the plaintiff.
Psychiatric Injury
In this case, the plaintiff has suffering from depression, which is an ailment known to have its causes in stressful situation, such as those described by the plaintiff. Can the defendant, as an employer be liable for injury to an employee's mental condition. This can be answered by looking at section 2 of the Safety, Health and Welfare at Work Act 1989 which defines "personal injury" as "any disease and any impairment of a person's physical or mental condition".
In relation to the Health, Safety and Welfare at Work Act 1989, Laffoy J says, at page 51 of her judgement in McGrath v. Trintech that ;-
In the landmark English decision of Walker v. Northumberland County Council ( [1995] 1 All ER 737 ), Coleman J saw no reason why "the risk of psychiatric damage should be excluded from the scope of an employer's duty of care". In this case Coleman J held that where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of the stress and pressure of their workload, the employer was under a duty of care, as part of the duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the volume or character of the work which the employee was required to perform. It was held that because of a previous work related nervous breakdown, the second breakdown was reasonably foreseeable by the employer. Walker has been favourably refereed to in this jurisdiction in the nervous shock case of Curran v. Cadbury (Ireland) Ltd. [2000] 2 I.L.R.M. 343. At page 349 of his decision, Judge McMahon observed that ;-
To allow for reasonably foreseeable psychiatric injury would also follow the recent decision of Laffoy J in Trintech v. McGrath , which has been referred to in the submissions of both parties of this case. Laffoy J added the condition that the injury complained of be foreseeable before liability is imposed. The fundamental test is whether the defendant fell below the standard to be properly expected of a reasonable and prudent employer.
In Walker , liability was imposed when the defendants were held to have knowledge of the plaintiff's disposition towards mental illness caused by stress.
In the facts at hand, the plaintiff states that he informed his employers of the bullying and he complains that nothing was in fact done to prevent further bullying.
It is my opinion, that the action of the defendant in not preventing any further injury to the plaintiff's mental health by taking no action whatsoever against the bullying, falls short of the standard of a reasonable prudent employer. This would be in line with the position in the English courts on bullying after the case of Waters v. Commissioner of Police for the Metropolis (2000) IRLR 720 HL. In this case Slynn Ld summarised the position thus:-
Conclusion
It is my opinion that the plaintiff has suffered personal injury as a direct consequence of a breach of the defendant's duties as employers to prevent workplace bullying.
Having found for the plaintiff, I now turn to the issue of damages.
General Damages
The plaintiff is seeking damages in the sum of € 20,816.16 for total loss of earnings to date of redundancy and € 773.94 in special damages for medical expenses.
Evidence has been given to the Court that the plaintiff is suffering from depression which he believes has been induced by the bullying experienced by him. The plaintiff claims that his physical and mental health has been damaged and he has suffered from prolonged bouts of depression and inability to sleep. In the submissions of the plaintiff, it is described how his sleep and appetite has been disturbed and his concentration is poor. The plaintiff states that he finds it difficult to go out and mix with people and has lost interest in life.
Jurisprudence on damages for loss caused by bullying in the workplace is sparse given the recent nature of the area. Following Parsons v. Iarnród Éireann , the Court cannot allow for heads of compensation to overlap. Therefore the Court will not be able to award damages for loss of earning up to the date of redundancy as this is a heading that has already been covered in the is case in the plaintiff's action before the EAT.
Also, this is not a case of constructive dismissal, therefore damages to be awarded will not cover loss of earnings. Damages can be awarded to compensate for the suffering caused by the injury which the plaintiff received as a consequence of the defendant's breach.
This is a case concerning psychiatric injury to the plaintiff, and when seeking authority on what damages are to be awarded, it will be useful to look at the jurisprudence regarding nervous shock. In Curran v Cadbury Ireland Ltd , McMahon J looked at the medical evidence which had been offered in support of the plaintiff's claim for psychiatric injury caused by the defendant's negligence. In awarding the plaintiff £12,000 for pain and suffering, £5,000 for future pain and suffering and £1,700 for agreed special damages, McMahon J took into consideration that the plaintiff had suffered a very unpleasant experience which had a serious effect on her emotional life for more than three and a half years. Here the plaintiff had been suffering from depression and anxiety following an incident in the workplace caused by the defendant's negligence.
In the recent case of McGrath v Garda Commissioner, the plaintiff claimed general damages for personal injuries and for loss and distress which he suffered by reason of his loss of standing in the community arising from his suspension. Morris J in the High Court assessed damages of £40,000 to compensate the plaintiff for the stress and anxiety and the general disruption to his enjoyment of life cause during his four year suspension from his position which had been delayed due to defendant's negligence.
Special damages
The plaintiff is entitled to recover the sum of € 773.94 as assessed in relation to medical expenses.
Approved: E&DE
Vivian Lavan
th March, 2005