Covers: the importance of prevention; management of the problem when stress is identified; possible legal action by the employee affected including the High Court's position; and provisions under the Safety, Health and Welfare at Work Acts 2005 to 2014 focusing on risk assessment and preparation of a safety statement.
Employers' liability for workplace stress, bullying and harassment continues to be one of the growth areas in Irish employment law. The obligation on the employer is to identify risk factors and put in place remedial mechanisms, including effective bullying, harassment and grievance policies. There is no absolute duty on employers to provide a stress free environment in the workplace, rather an employer is expected to conduct their business as a reasonable and prudent employer would.
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Prevention should be the foremost concern for the prudent employer. Prevention requires the employer to be mindful of circumstances which can give rise to stress to try to ensure that they do not occur. An employer must complete a workplace risk assessment that should identify any hazards present that could lead to stress and these results must be documented.
The second concern for the employer is the management of the problem when stress is identified. It is not sufficient for the employer to wait until a crisis has been reached and the employee had broken down before doing anything. The employer will be expected to have created an environment whereby an employee will feel perfectly free to raise the alarm as soon as they believe themselves to be suffering from stress.
Certain stress in the workplace may be actionable at common law by the employee. The Health and Safety Authority has deemed actionable workplace stress as when the demands on a person exceed their capacity to meet them. Stress results in a negative feeling associated with physical symptoms including increased heartbeat, swiftness of breath, and dry mouth. This may be caused by a variety of factors including faulty work organisation, changes in work practices, poor communication at work, ill defined work roles, highly demanding tasks and also bullying and harassment.
Employers may be liable to their employees for stress related injuries under common law principles and under the Safety, Health and Welfare at Work Acts 2005 to 2014.
A cause of action may arise under the common law principles of tort when certain criteria are met.
- There is a duty of care owed.
- There has been a breach of that duty. That is to say that the injury was foreseeable and the employer cannot show that they acted reasonably.
- There has been an injury.
- The injury was caused by the breach of duty of care.
It will not be sufficient for an employee to prove that the stress was foreseeable, rather it must be shown that the harm arising from the stress was foreseeable. Further an employer must have been aware of the impending harm. This will be determined on the basis that a reasonable employer would have known about the impending harm. Foreseeability of harm can be shown from the nature and extent of an employee’s work and its effect upon the employee. An employer will only need act on plain signs of impending harm, which again will be determined from the standpoint of a reasonable employer. The employer can accept the employee’s view that they are fine without further enquiry.
In order for a cause to be actionable, it must be established what steps could or should have actually been taken and the injury caused must be linked to the failure to take these steps.
If the employee has an underlying or pre-existing factor, this will be taken into account but may not exclude liability. Employers should take care not to exacerbate a condition which they are aware of.
The best protection an employer can afford themselves from employee stress claims is to ensure that their response to any incidents complained of is reasonable. The employer is not expected to abdicate all control over the manner in which employees carry out their duties of employment and may manage difficult employees in a robust and fair manner.
The High Court recently provided further guidance on when workplace stress may be actionable. In Glynn v Minister for Justice  IEHC 133, the High Court rejected a claim by a civil servant employed on clerical duties at a Garda station that she suffered stress as a result of being bullied and harassed.
The case provides a useful set of guidelines in distinguishing between three key terms that are commonly and sometimes incorrectly interchanged in the context of workplace bullying, namely occupational stress, workplace stress and bullying.
- Occupational stress is not actionable. It's something which every employed person may experience at some stage of their working life and can occur for a variety of reasons many of which are unrelated to bullying.
- Workplace stress can be actionable if certain legal criteria are satisfied. It can however also be the result of behaviour which falls short of bullying. The differentiating factor is that it lacks the degree of deliberateness which is the hallmark of bullying.
- Bullying itself is more deliberate and is one of the more obnoxious traits in human behaviour. It involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct intended to reduce that person's self-worth.
The High Court adopted the principles set out in Quigley v Complex Tooling and Moulding where the Supreme Court accepted the definition of bullying set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration Order) 2002 (SI No 17 of 2002) as 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 the definition may be an affront to dignity at work but as a once off incident, it is not considered to be bullying.
This case also reiterates that bullying must involve an objective element and not comprise solely of a subjective test. For reasons of common sense the test must be an objective one otherwise most employers would be vulnerable to allegations of bullying based purely on subjective perceptions of what might constitute bullying.
Safety, Health and Welfare at Work Acts
The Safety, Health and Welfare at Work Acts 2005 to 2014 provide a framework for employers and broad general duties to achieve better health and safety which includes prevention of stress in the workplace.
The 2005 Act sets out a range of duties for employers to comply with which include managing and conducting workplace assessments in a manner which will reasonably ensure the health and safety of the employees (including temporary and fixed term employees) and which will prevent improper behaviour of employees which threaten the health, safety and welfare of the employees.
The 2005 Act introduced new obligations on employers to undertake a risk assessment and identify hazards to the safety, health and welfare of employees, and to prepare a safety statement in response to the risk assessment carried out.
The safety statement must set out in writing how health, safety and welfare are to be achieved in the work environment, and specify the risks assessed and the hazards identified in the investigation. It must further set out the resources provided and the protective and preventative measures taken at the place of work. It should also identify the co-operation needed by the employee and the job titles of the people responsible for safety tasks.
The statement should be made in a form, manner and language (if appropriate) which is easily understandable by the employees. A copy of the safety statement must be available for inspection in or near every place of work to which it relates. It should be brought to the attention of new employees when commencing employment and to specific employees who may be exposed to a specific risk under the safety statement. The statement must further specify the arrangements made regarding the appointment of safety representatives and members of the safety committee.
The Health and Safety Authority has published a guide to assist employers to understand the nature of their duties and obligations in managing workplace stress. It has also produced an information sheet to help employees cope with and overcome stress.