In the case of McCarthy v ISS Ireland Limited (Trading as ISS Facility Services) & Anor [2018] IECA 287 the plaintiff had been employed by the first named defendant, working at the hospital of the 2nd named defendant the HSE, and claimed that between May 2009 and February 2011 there were five separate incidents involving staff she supervised. This case involved an appeal by the employee to the Court of Appeal against the dismissal of the plaintiff’s personal injuries claim.

She claimed that her employer (through its employees)had acted abusively and aggressively towards her during the course of their employment and that over time this caused her severe stress, anxiety, humiliation, pain and suffering that she was compelled to leave her employment.

Reported to her employer

She alleged that after the first incident she reported it to her employer but no action was taken to prevent recurrence. The plaintiff accepted that there was a considerable time between each particular incident, that each incident was perpetrated by a different staff member and that the employer could not have foreseen the first incident.

The first incident happened on the 28th May 2009. On that date Ms. J who worked as a cleaner under the supervision of the plaintiff, approached the plaintiff and accused her of having made complaints about her in a work audit. Ms. J was accompanied at the time by her husband. They both acted in a very aggressive manner towards the plaintiff. The plaintiff contends that this behaviour amounted to an assault. In particular the evidence was that it was Ms. J’s husband who, during the course of this encounter, pinned the plaintiff against a wall and threatened her. She was in fear that he would hit her. Ms. J’s husband was not employed by the first defendant. But the plaintiff contends that since Ms. J who was an employee was acting in concert with her husband, the first defendant is vicariously liable for the actions of Ms. J on the occasion. She reported this incident to her employer. She was so distressed by what had happened that she went on sick leave. She attempted to return to work in September 2009 but being still nervous and stressed she resumed sick leave. She did not hear back from her employer as to any steps taken on foot of her reporting the incident.

The following 4 incidents, while not apparently as serious, involved other employees roaring and shouting at the plaintiff.

Failure to provide a Safe Place of Work

The essence of the plaintiff`s claim centred on the contention that the first defendant had breached their duty of care to the plaintiff to provide a safe place of work as no particular action had been taken to prevent a recurrence and this inaction and the cumulative effect on her mental health forced her to leave her employment. She also alleged that, as a result of the breach, she suffered personal injuries, loss and damage. The trial judge had dismissed the plaintiff’s claim on the basis that she had not made out her claim of negligence and that a careful employer could not have predicted that such incidents would happen. The plaintiff submitted that the trial judge had erred in characterising her claim as one of Workplace Bullying and instead alleged that the employer was vicariously liable for their employees’ tortious acts and was negligent in failing to provide a safe place of work.

It was submitted that, by this failure, the employer negligently permitted an atmosphere or culture to exist in her work place whereby cleaning staff, over whom the plaintiff was the supervisor, felt free to speak and act aggressively and abusively towards her without fear of sanction or other adverse consequences. In other words this tortious type of behaviour by other cleaning staff was tolerated in the work place by the employer, and therefore deemed by staff to be acceptable.

The appellant submitted that, by concentrating in his analysis of the plaintiff’s claim on the question of Bullying, and finding that the indicia of Bullying were not established by the evidence, the trial judge had failed to carry out any proper analysis of the question of the employer’s vicarious liability for the individual tortious acts of the employees. It was submitted that the evidence of each of the five acts supported a conclusion that each act constituted an assault committed in the work place and in the course of their employment.

Court of Appeal Decision

The Court of Appeal dismissed her appeal for vicarious liability on the basis that the incidents complained of were not behaviour committed in the course of employment as such a finding would stretch the concept of vicarious liability beyond its intended limits, particularly if employers were to be found vicariously liable for every individual aggressive verbal outburst by an employee. That is, the employer could not be held liable for an individual incident.
However, the Court agreed that all employers owe a duty of care to their employees while at work. The Court stated that, given the plaintiff’s role as supervisor and the potential conflict the role brings, that the employer had a particular duty of care to her and ought to have procedures in place to minimise the conflict and to prevent recurrence.

Mr Justice Peart noted that, in his report, the plaintiff`s witness Mr Aylward listed twelve failures on the part of the employer. Some related to bullying, but the following were relevant to the breach of the duty of care by the employer, which was the basis on which the case was pleaded and run by the plaintiff:
• The company did not seem to have a policy for dealing with allegations of assault.
• The company did not investigate the alleged serious assault by the staff member nor did it invoke its disciplinary procedures.
• The company did not investigate the alleged serious assault by a member of the public who was a spouse of the above staff member.
• The company did not investigate a further threatened assault by a male employee.
• The company did not issue any guidelines to staff after this incident warning them of the seriousness of issues of this nature and the consequences.
• The company did not put in place a protocol for dealing with assault and threatened assault.
• The company did not monitor the situation post this incident and did not provide assistance to the plaintiff on her return to work. At this stage the company should have seriously considered giving the plaintiff a personal alarm.
• The company does not seem to have an Employee Assistance Programme (EAP) in place for dealing with work related stress. The company, by changing the plaintiff’s terms and conditions of employment when she returned to work after the alleged assault almost seemed to be taking disciplinary action against the plaintiff rather than investigating her complaint and supporting her in a difficult situation.

The Court expressed a view that the duty of care should also take account of the nature of the job and the relationship between employees but that the duty of care does not extend to ensuring that no recurrence ever takes place.

Accordingly, the Court 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 and remitted the case to the High Court for a determination of the issues of causation and damages.

Conclusion

The essence of the employee’s case against her employer was that, having made a complaint to the employer in the aftermath of the first incident, combined with the failure of the employer to act even after subsequent complaints, no steps were taken to prevent a recurrence, and that this failure led to a culture in the workplace where aggressive, abusive and threatening behaviour towards the employee, as their supervisor, was allowed to occur with impunity to the perpetrators, and that the incidents themselves and the atmosphere of fear and intimidation towards her led cumulatively to her suffering such fear, stress and anxiety that she was forced to leave her employment.

The duty of care does not extend to ensuring that no recurrence ever takes place. That would be too high a standard to be expected. However employers are obliged to take reasonable steps to protect their employees from a recurrence where it was evident to them that these were a cause of significant stress, anxiety and fear to their staff.