The Fine Line between Workplace Bullying and Negligence – The Court of Appeal clarifies the law

by Ailbhe Dennehy, Associate in A&L Goodbody’s specialist Employment Practice Group

Last month the Court of Appeal weighed in on a High Court decision that appeared to concern a (somewhat unusual) situation of “upwards bullying” – i.e. where a supervisor had allegedly been bullied by a number of subordinate employees. The High Court found the conduct of the subordinates did not meet the high threshold required to constitute “legal” bullying. However, the Court of Appeal concluded that the case was not one of workplace bullying, but, rather, one of negligence. The Court found the employer had breached its duty of care to the supervisor when it failed to take action to prevent the recurrence of the aggressive behaviour of her subordinates

We set out below a summary of the Court of Appeal decision in McCarthy v ISS Ireland Ltd & HSE and what this means for employers.

The facts

Ms McCarthy was employed by ISS Facility Services as a cleaning supervisor in a Limerick hospital. She claimed that, over the course of 2 years, she experienced 5 separate incidents where other cleaning staff, whom she supervised, acted in an “aggressive, threatening and abusive manner towards her” causing her “severe stress and anxiety, humiliation, pain and suffering” such that she experienced significant stress and ultimately resigned from her job.

Ms McCarthy reported these incidents of threatening and abusive behaviour, ranging from one male employee pinning her to a wall and another employee “shouting and roaring” at her in public, to her employer. However, she alleged that “no particular action was taken to prevent a recurrence” which resulted in a culture of tolerance for such behaviour within the workplace. Ms McCarthy asserted that the inaction, which resulted in Ms McCarthy experiencing “fear, stress and anxiety“, constituted negligence.

The High Court decision

The High Court regarded Ms McCarthy’s personal injuries claim as one of bullying in the workplace. In particular the Court identified three “markers of bullying“:

1. Repetition: “something happening on a daily basis…or weekly basis that a person has to endure“;
2. Duration: of the particular treatment to which the person is subjected; and
3. Indications of escalation of the activity.

Bearing these “markers” in mind, the High Court was critical of the fact that each of the 5 incidents was perpetrated by a different employee and there were “temporal gaps between each such incident“. The trial judge adopted the view that “ordinary human life is full of upsets large and small…which don’t necessarily give rise to legal liability” and queried what steps Ms McCarthy’s employer could reasonably have taken in respect of the 5 incidents.

Ultimately the trial judge concluded that “at the end of the day this was an unfortunate episode” but the 5 incidents were not, in the judge’s view, of the nature that would “in the ordinary course cause a person to suffer as the plaintiff [Ms McCarthy] claims to have suffered”. The judge held that the Court “could not possibly impose some sort of legal liability to pay the huge sums of damages and compensation being claimed on behalf of the plaintiff in this case“. The case was dismissed.

The Court of Appeal decision

On appeal, Ms McCarthy claimed that the trial judge had erred in characterising her claims as one of “workplace bullying“. Ms McCarthy argued that she never presented her case as one of workplace bullying, but rather one of negligence on the following 2 grounds:

1. Alleged individual tortious acts by employees committed in the course of their employment which caused her injury and for which the employer was vicariously liable; and
2. Alleged negligence by the employer by failing to provide a safe place of work by taking no reasonable or effective action to prevent recurrence of the behaviour and thereby “negligently permitting” an atmosphere to exist in the workplace whereby cleaning staff felt free to “speak and act aggressively and abusively” towards Ms McCarthy “without fear of sanction“.

Vicarious Liability?

While in the case of a workplace bullying claim there is an onus on the plaintiff to demonstrate that the injury to her health was reasonably foreseeable by the employer in the circumstances, no such obligation arises in the context of determining an employer’s vicarious liability for the individual tortious acts of its employees.

However, the Court of Appeal, while acknowledging that each incident amounted to a “technical assault“, did not find that the acts were committed in the course of the perpetrators’ employment. The Court went on to find that the “concept of vicariously liability” would be stretched “beyond its intended limit if an employer was to be found vicariously liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress“. Ms McCarthy’s first ground of appeal was therefore dismissed.

Failure to Provide Safe Place of Work?

In relation to Ms McCarthy’s second ground of appeal, the Court confirmed that an employer has both a common law and statutory duty to ensure a safe place of work. The Court noted that an employer must “take all reasonable steps to protect the employee” where there is a “foreseeable risk” so that no injury is caused.

The Court noted that Ms McCarthy, as a supervisor had authority over the employees in question. In the Court’s view, this role could “potentially bring her into conflict with those under her supervision” such that it was reasonable for her employer to have “a particular duty of care” towards her as a supervisor and to “anticipate that such conflict might occur”. An employer should 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“. The Court concluded that “nothing was done to protect the plaintiff who was in a supervisory role, which role, by its very nature, may lead to confrontation with those who are being supervised“.

Justice Peart acknowledged that the extent and nature of the duty of care varies depending on the nature of the employee’s employment. He confirmed that the duty of care must take account of the employee’s job and relationship between her and other employees such that “one cannot overlook the fact that the plaintiff’s job was as supervisor of cleaning staff in a busy hospital” which required a “very high standard of cleanliness“. In such circumstances the Court concluded that where Ms McCarthy had made complaints to her employer about hostility, the employer owed a duty of care to take some reasonable steps to address what occurred to minimise the chance of recurrence.

The Court found that the employer was “liable in negligence for the injuries, loss and damage that are attributable” to its negligence by:

(i) not having policies and procedures in place to deal with issues of this nature; and

(ii) failing to provide Ms McCarthy with a safe place of work.

The Court of Appeal found that the trial judge had erred by failing to deal with the alleged failure of the employer to provide a safe place of work. The Court remitted the case to the High Court for a determination of the issues of causation and damages.

Conclusion

While employers in Ireland will be acutely aware of recent workplace bullying decisions, not least because of the significant levels of compensation, the concept of liability for negligence in such circumstances will give further pause for thought. The Court of Appeal’s decision serves as a warning to employers that a failure to reach the legal definition of workplace bullying may not absolve an employer from liability. Bearing in mind the common law and statutory duty to ensure a safe place of work, employers should take prompt and effective action when on notice of any employee behaviour that may breach that duty.

About the author
Ailbhe is an Associate in A&L Goodbody’s specialist Employment Practice Group in Dublin, Ireland. She advises both private and public sector, domestic and international clients in relation to a variety of contentious and non-contentious employment law issues.
On the non-contentious side, Ailbhe regularly advises employers on the drafting of contractual documentation and policies, as well as guiding employers through complex employee management issues. Ailbhe frequently provides strategic and practical advice to clients in respect of individual and collective redundancy procedures and employment aspects in the context of corporate restructurings, outsourcings, mergers and acquisitions.
On the contentious side, Ailbhe has acted for a range of clients in respect of unfair dismissals, discrimination, personal injuries, and employment-related injunctions and has represented employers before all fora. Ailbhe has also participated in a number of alternative dispute resolution scenarios. Ailbhe has advised and supported clients in crisis situations involving strikes and other industrial action.