Guide to claims* for work related psychological injuries
We are frequently consulted by clients who have suffered psychological / psychiatric injuries in the workplace.
Unfortunately, cases of this nature are very common.
In order to succeed in a case of this nature, it is nearly always necessary to have engaged with your employer, and appealed to your employer to put a stop the offensive working conditions. We strongly recommend that employees who are encountering bullying in the workplace take action at the first opportunity before the offending working conditions cause injury.
However, an injured employee must actually go further before a case of this nature will have good prospects in Court. The injured employee must also prove that the employer had knowledge that the employee was at risk of suffering injury. Unless all of this is properly communicated to the employer, it will nearly be impossible to prove that the injuries suffered by the employee were foreseeable. Without foreseeability, the employer is off the hook and will not be found to be liable to pay compensation for personal injury.
It is often the case that an injured employee has become a nervous wreck as a result of workplace bullying. When a decision is made to engage a solicitor for advice and representation, the required ground work for a claim to be viable has not been done (written complaints to employer have not been sent). There is a strong desire to not go back to the offensive workplace. Unfortunately, even though injury may have been caused in these kinds of cases, the prospects of success will be very difficult unless it can be proved that the employer was aware of the bullying, and aware of the risk of injury.
Act promptly. Send a grievance letter /letter of complaint or e-mail to your employer after each and every occasion of bullying. Be specific as to names, dates, locations, who said what, why you feel bullied etc. If you were caused to be distressed or upset, make sure that this is made clear in your letter / grievance / email. The sooner you act, the sooner you will be able to prove foreseeability. It is a matter of protecting yourself in the workplace, and most litigation conscious employers will affect change so as to protect their employee who they know to be at risk of injury.
Quite often, the offending treatment causing distress is very real, but equally quit subtle. The more outrageous the transgressions of your employer and / or co-employees, the stronger a case of this nature will be in terms of proving liability in a Court.
We are also struck sometimes by the vagueness of the instructions we receive. This is entirely understandable, because bullying may take place frequently on a day to day basis over a period of even years. It is hard to recall dates, times, what words were used, the tone in which words were spoken, the number of offensive interactions etc. years after the event. These details will be required (or at least will be very helpful) if your case goes to court.
Any employee who is contemplating bringing a compensation claim for psychological injuries inflicted in the workplace may benifit from reading the judgements of the Supreme Court in Úna Ruffley v. The Board of Management of St. Anne's School, [2017] IESC 33
Intentional Infliction of Emotional Suffering /The Rule in Wilkonson v. Downton
A single event is not bullying. A single event can result in liability, but the actions of the liable party would have to be very extreme and carried out with the intention of causing emotional suffering. Such an employee could sue for the tort of Intentional Infliction of Emotional Suffering if they were caused to suffer from a psychiatric injury as a result (also the Rule in Wilkonson v. Downton). The circumstances giving rise to liability would need to be very extreme before a Court would accept that liability is proved.
Negligence / Breach of Duty
Bullying is a repeated behaviour on the part of the employer or co-workers. Bullying itself is not a tort, but liability is instead based on your employer's general duty to avoid foreseeable harm being caused (negligence), and based on your employer's duty of care under statute to provide a safe place and system of work.
The general rule in negligence and breach of duty cases is that a defendant has no liability for unforeseeable injury. Here, it is essential that the injured employee can prove that the employer was aware of the the bullying, and furthermore, it is essential to be able to prove that the employer was aware of the consequences of the bullying in that the employer became aware of the risk of injury.
The definition of bullying which is accepted by the courts is set out in the Code of Practice Detailing Procedures for Addressing Bullying in the Workplace (S.I. 17 of 2002). Bullying is “repeated inappropriate behaviour”, which may be “direct or indirect, whether verbal, physical or otherwise” engaged in by an individual or a group against the plaintiff at their workplace and which “could reasonably be regarded as undermining the individual’s right to dignity at work.”
The definition of bullying is objective (not subjective). In other words, it does not assist a hypersensitive employee who has become injured because of what would be seen as reasonable confrontations at work. In this context, we would be skeptical of being able to achieve a remedy unless the behaviour complained of was severe and outrageous enough so as to make the attack on the individual's dignity obvious to a Court.
It is noted in Ruffley that an employer is entitled to expect ordinary robustness from its employees. This again goes to the fact that an objective test is applied, and the undermining of the plaintiff's dignity would need to be fairly obvious before a Court would accept that the offending treatment amounts to bullying.
It is equally noted in Ruffley that correction and instruction "are necessary in the functioning of any workplace". Correction and instruction is required for the avoidance of accidents and to ensure that productive work is engaged in. The Court notes that "it may be necessary to point to faults". "It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours." The Court describes that "it is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention." It is stated that "bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit". It is further noted that "sometimes a disciplinary intervention may be necessary."
If you are interested in discussing a prospective claim for psychological injury against an employer, please contact E.M. O'Hanrahan Solicitors.