Interaction between Employment Law and Personal Injuries Fergus Long Overview Employer’s Liability by tmf12618

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									Overview Employer’s Liability and
 Employment Practices Insurance

          Fergus Long
            Partner
• What type of policy does the insured have?

• What does the policy cover? Bodily Injury v Personal
  injury?

• Level of cover under Employer’s Liability policy?

• Level of cover under Employment Practice Policy?
Employment
• Hiring
    – Advertising
    – Interviews
    – medicals
• Equality Issues
    – Gender
    – Disability etc
• Issues in the course of employment
• Firing
• Unfair Dismissals
• P.I. / Stress Claims
• Settlements
    – Apportionment of settlement sum between Injury and
       employment issues, and the Tax implications of same
Employment
• What Policies did the employer have in place?

• How were they implemented – if at all?

• What notice / complaints did the employer have?

• What action was taken?

• What is the history in the job/Department?
Recruitment
• Advertising

• Application Forms

• Interviews

• Medical Examinations

• Equality Issues
Employment Equality Considerations
Drafting advertisement –
     • Review and review again!
     • Ryanair case – “young and dynamic”.
     • Advertisement reasonably indicates an intention
        to discriminate?

Job specification –
     • Exclude non-essential features.
     • Ensure it appeals to all.
     • Only seek info objectively justified.
Data Protection Considerations

• Application forms –

  • Only seek info which is relevant and necessary.
  • Avoid discriminatory details e.g. age and marital
    status.
  • Personal information (medical info; previous
    criminal convictions) should only be requested if it
    can be justified to meet requirements of vacancy.
  • Customised application forms.
  • Timing of request for information e.g. pension
    scheme information.
  • Character enquiry form.
Data Protection Considerations
• Storing of information –

     • “Appropriate” security measures.

     • Limited access.

     • Do not retain info indefinitely.

     • Keep info long enough to defend proceedings!
Employment Equality Considerations

•   Employment Equality considerations.
•   Access to employment – discrimination prohibited.
•   Covers entire process from advertisement.
•   Irrelevant whether employer intended to
    discriminate.
•   Examples of trouble spots –
      – Discriminatory question/comment at interview.
      – Lack of transparency in selection procedures.
      – Formal selection criteria –v- actual practice.
      – Evidence of preference of one group over
         another.
Employment Equality Considerations
  Cunningham –v- BMS Sales Ltd (2007)
  – €5,000 for discrimination on age ground.
  – Complainant refused to give date of birth and gave incorrect
    age.
  – Seeking age and date of birth details established prima facie
    case of discrimination on age ground.
  Marie Casey –v- Coachford National School (2007)
  – €1,000 for discriminatory questions at interview.
  – question about the stages her children were at.
  – Complainant alleged she was asked to specify their ages.
  – Equality Officer noted the conflict – said it was immaterial
    as either question was discriminatory.
  – no evidence that other candidate (male) asked same question.
Employment Equality Considerations

• Short listing

     • Decide Criteria first.

     • Objective, fair criteria used?

     • Maintain notes by each member of the Interview
       Board

     • Could any intention to discriminate be inferred?

     • Note reason for not short listing candidates
Employment Equality Considerations

• Interview -
    – Gender balance.
    – Training of Interviewers.
    – Notes of all members need to be retained.
    – Facilities for disabled applicants.
    – Avoid questions on any one of the 9
       grounds.
    – Base questions on criteria in job
       description.
    – Question all candidates against same
       selection criteria.
References


Czerski –v- Ice Group
  - Requirement to furnish two employment
  related references
  - Ms Czerski was indirectly discriminated
  on grounds of race
  - Compensation of €7,000

• Should be able to objectively justify such a
  requirement
• Overturned on appeal
References
• No legal obligation to give one – unless there is
  industry practice (Spring –v- Guardian Assurance).

• Do not make job offer or indicate success subject to
  references until fully satisfied with references.

• PIAB –v- A Worker (25th June 2007).

• €15,000 compensation ordered against prospective
  employer.

• Employer must be fair and thorough in its assessment
  of the views of referees.
Absence Management Policies
• spell out employee’s rights and obligations when off from
  work due to sickness.

     – provide details of contractual sick pay terms;
     – outline the process employees must follow if absent
       from work;
     – include when employees need a self-certificate form;
     – specify when employees require a medical certificate
       from their doctor certifying their absence;
     – reserve the right to require employees to attend an
       examination by a Company doctor and to request a
       report from the employee’s doctor with the
       employee’s consent.
     – include provisions for return to work interviews
       (identified as the most effective intervention to
       manage short term absence).
Short Term Absence – Case Law

• ENC Dairy Products Limited –v- Connolly

  - Serious of single day absences over a number of
  years which were illness related.

  - Warnings given to employee.

  - Employee dismissed.

  - Tribunal found no breach of natural justice.
Short Term Absence – Case Law
•     ENC Dairy Products Limited –v- Connolly
      Tribunal held it was reasonable for the Company to:-
(a)   conclude that the employee’s health is unlikely to
      improve in view of his history and;
(b)   In view of the nature that declared illness, that any
      further medical assessment would not assist in assessing
      the employee’s probable future attendance at work;
(c)   That the enquiry of the Company was full and fair in this
      case;
(d)   That it was not unreasonable for the Company, after
      such full and fair enquiry to conclude as they did and the
      employee’s employment should be terminated.
Short Term Absence – Case Law
Mooney & Others –v- Rowntree Macintosh Limited

•   Employee had 26% absentee record 30 years’
    service.

•   Number of warnings given.

•   Employee dismissed.

•   Tribunal upheld decision of employer to dismiss.
Short Term Absence – Case Law
Pfizer Chemicals Corporation –v- Carroll

•   Employee had persistent absenteeism due to
    alcoholism.

•   Tribunal in arriving at their decision considered the
    following:-

•   Medical certs which the employee had submitted
    showed that the absenteeism related to various
    medical problems, not one continuing problem
Short Term Absence – Case Law
•   The Company had tried to ascertain the true medical
    position of the employee and were not aware that
    there was a continuing problem. Formal medical
    investigation by the Company would have seemed
    fruitless because of the transient nature of the
    employee’s symptoms and complaints.

•   The Tribunal held that the Company could not be
    faulted for coming to the conclusion that the
    employee’s attendance would not improve and the
    Tribunal felt that the Company was justified in
    saying “enough is enough” and dismissing him.
Long Term Absences

• How long is “long term”?

• IBEC study defined long term absences as being
  absences that last more than 20 days.

• Vital to have a formal strategy in place.

• Purpose – to help employees to get back to work after
  a prolonged spell of sickness or injury related absence.

• Awareness of potential disability discrimination
  claims is also crucial.
Long Term Absence - Interventions

•   Occupational health involvement.
•   Line management involvement as part of the absence.
•   A managing programme.
•   Restrictions on sick pay.
•   Changes to work patterns or environment.
•   Return to work interviews.
•   Rehabilitation programme.
Recovery And Return To Work
Process
• Keep in contact with sick employees – must be
  sensitive and non-intrusive. Should be agreed with
  staff member.

• Plan and undertake workplace controls or adjustments
  – risk assessments can identify measures or
  adjustments e.g.:-
  - allowing gradual return to work.
  - changing work patterns and management style to
       reduce pressure.
  - altering the employee’s working hours.
  - accommodating the employee’s mobility.
Long Term Absence – Case Law

Gavin –v- Bus Eireann
• Bus driver employed with Bus Eireann for 20 years.

• Doctor certified him as having 1 – 2% risk of having a
  seizure while driving.

• Dismissed on basis that it would be unacceptable risk
  to customers.

• EAT found against Bus Eireann on the basis that they
  did not seek specialist medical opinion.
Long Term Absence
Bolger –v- Showerings Ireland Limited
• High Court’s view on dismissal on the grounds of
  capability were as follows:-
• To be deemed fair, the onus is on the employer to show
  that:-
  (a) Incapacity was the reason for dismissal.
  (b) Reasons substantial.
  (c) Employee received fair notice and was afforded
       opportunity of being heard.
• Where no dispute between the employer and employee as
  to incapacity of the employee because of ill health, not
  necessary for employer to await results of medical test
  before deciding to dismiss employee.
Disability
•Disability defined as:-
Total or partial absence of a person’s bodily or mental
functions including the absence of a part of the person’s body.
The presence in the body of organisms causing or likely to
cause chronic disease or illness.
The malfunction, malformation or disfigurement of a part of a
person’s body.
A condition or malfunction which results in a person learning
differently from a person without the condition or
malfunction.
A condition/illness or disease which affects a person’s
thought process, perception of reality, emotions or judgement
or which results in disturbed behaviour.
Disability – Case Law

Health & Fitness Club –v- A Worker
• Here anorexia/bulimia was considered to be a
  disability.

A Complainant –v- Café Kylemore
• Alcoholism held to be a disability.

A Worker –v- A Company
• Obsessive Compulsive Disorder was considered to be
  disability.

Customer –v- Gemma Layden
• Here a temporary injury constituted a disability.
Disability – Discrimination

• PHI Insurance – contractual right?

• Termination before benefits exhausterd? – breach of
  contract?

• Status of employee while on PHI long term?
Reasonable Accommodation
• Reasonable accommodation may include:-
    – making physical adjustments to the workplace;
    – allocating some of the disabled person’s duties to
      another person;
    – transferring the disabled person to another vacant
      post, with or without reasonable adjustments being
      made;
    – altering the disabled person’s working hours;
    – providing special equipment to assist the disabled
      person to perform his/her tasks;
    – providing training in the use of special equipment.
• Employer must explore whether the measures required
  would be practicable.
Reasonable Accommodation?
Vincent Kavanagh –v- Aviance (2007) –
• Medical incapacity dismissal
• €125,000 compensation – equivalent to almost 4 years
  remuneration;
   - €65,000 for dismissal/loss of earnings
   - €60,000 for effects of stress/discriminatory
  treatment.
• Complainant brought doctor to hearing – Respondent
  did not.
• Reasonable accommodation issue.
Pregnancy Related Sickness Absence
• Employers should record pregnancy related sickness
  absence separately from the sickness absences.

• Employers have no obligation to provide different sick
  pay provisions for women who take time off work for
  reasons related to their pregnancy (McKenna case).

• An employer who includes absence related to pregnancy
  in any assessment at work or sickness record will be
  vulnerable to a claim of sex discrimination.

• 12 month period of service qualification under Unfair
  Dismissals Acts does not apply.
Termination Of Employment

• Unfair Dismissals

• Constructive Dismissals

• Breach of Contract –Express and Implied Terms

• Grievance & Disciplinary

• Codes of Practice

• Sick Pay – Occupational Stress –
Remedies For Dismissed Employees
• Wrongful Dismissal at Common Law (no qualifying
  period of service required).

• Unfair Dismissal – Unfair Dismissal Acts.

• Industrial Relations Acts – Claim to a Rights
  Commissioner (not legally binding). No qualifying
  period of service.

• Claim for Discriminatory Dismissal under
  Employment Equality Legislation.
Scope Of Legislation

To whom does the Legislation apply?

•   One year’s continuous service – notice period added
    to period of actual service.

•   Claim within 6 months of dismissal – 12 months in
    “exceptional circumstances”.

•   Constructive Dismissal – burden of proof on
    Employee to prove “dismissal” occurred.
Who Is Excluded From The
Legislation?
• Independent contractor – not working under a contract
  of service but working under a contract for service.

• Employees who do not have one year’s continuous
  service (exceptions).

• A person employed by a close relative; resides with
  that relative and the residence is the place of
  employment.

• Certain members of the Defence Forces.

• Gardai.
Who Is Excluded From The
Legislation?
• A person who is receiving training
  allowance/undergoing instruction with FAS.
• A person employed by FAS under a contract for
  apprenticeship.
• Civil Servant.
• Officers of local authorities.
• Fixed term/specified purpose contracts – provided
  certain requirements are complied with.
• An employee who is ordinarily employed and resident
  outside the State.
Who Is Excluded From The
Legislation?
• An employee who is dismissed during probationary
  period – provided probation is less than one year and
  is specified in the contract.

• An employee who is undergoing training to qualify as
  a Nurse; Pharmacist; Health Inspector; Medical
  Laboratory Technician; Occupational Therapist;
  Physiotherapist; Speech Therapist; Radiographer;
  Social Worker.

• An employee who is employed under a statutory
  apprenticeship and is dismissed within 6 months of
  commencement or one month post completion.
Circumstances Where The Twelve Months
Continous Service Issue Does Not Apply
• Dismissal related to a Trade Union activity/
  membership.
• Dismissal related to pregnancy or matters connected to
  pregnancy.
• Dismissal for exercising rights under the National
  Minimum Wage Act, 2000.
• Dismissal related to maternity leave
• Dismissal related to adoptive leave.
• Dismissal related to parental leave.
• Dismissal related to carer’s leave (Carer’s Leave Act,
  2001).
• Dismissal on one of the nine discriminatory grounds in
  the Employment Equality Acts [Claim to Equality
  Tribunal].
Grounds For Automatic Unfair
Dismissal
• Membership of Trade Union/Related activities.
• Pregnancy/giving birth/breastfeeding or any related
  matter.
• Religious or political opinions.
• Race/colour or sexual orientation.
• Age.
• Membership of the traveling community.
Grounds For Automatic Unfair
Dismissal
 Entitlement /exercise of rights under National
  Minimum Wage Act, 2000.

 Exercise of right to adoptive leave/carer’s
  leave/parental leave.

 Civil/Criminal proceedings against an employer –
  actual or threatened.

 Unfair selection for redundancy.

 Exercise of right to maternity leave.
Grounds For Fair Dismissal

   Subject To Employer Acting Reasonably And
    Following Fair Procedures;
   Capability
   Conduct.
   Competence.
   Continuation Would Contravene Other Legislation.
   Redundancy.
   Other Substantial Ground.
Importance Of Fair Procedures
•   If procedure is unfair – dismissal is automatically
    unfair.
•   Investigation; Disciplinary Hearing; Representation;
    no pre-determination of the issues; Appeal.

Daly –v- Somers (EAT – 29th November, 2005)
• Claimant employed as shop assistant for 23 years.
• Owner had suspicions as takings low.
• CCTV installed.
• Dismissal – no reason given.
• Unfair Dismissal - €11,000 compensation.
O’leary –V- Dunnes Stores
(Ud1095/2003)
•   Determination issued on 8th December, 2005.
•   Claimant one of two store managers in Dunnes on North
    Main Street, Cork.
•   Responsibility to attend for work at 8.30 am to open
    store.
•   October 2002 Claimant failed to turn up or ring in.
    Regional Manager phoned – child sick.
•   Claimant seen drinking the night before.
•   Disciplinary hearing – Claimant admitted he lied.
    Written warning – further issues could lead to dismissal.
•   Further performance issue in 2003.
•   Ultimately dismissed – no option to appeal.
•   Unfair - €25,000 compensation.
Importance Of Fair Procedures
•   Code of Practice on Grievance and Disciplinary
    Procedures (SI 146/2000).
•   Will be taken into account by a Court/Tribunal in
    assessing whether proper procedures were followed.
•   Basis of fair procedures;
    - employee grievances are addressed and
      processes fairly.
    - details of allegations against employee are put to
      the employee.
    - employee given opportunity to respond.
    - employee given the right to be represented.
    - steps in procedure should be progressive but can
      be skipped if absolutely necessary.
Fair Procedure
 •   Fundamental principle of Unfair Dismissals legislation is
     that an employer must follow fair procedures in effecting
     dismissal.
 •   Section 5(b) of the 1993 Act provides that EAT will take
     account of the employer’s conduct in effecting a
     dismissal when deciding whether dismissal was fair.
 •   EAT has always taken the view that if the procedure
     followed by the employer was unfair, then the dismissal
     itself is automatically unfair.
 •   EAT will, however, take into account the contribution of
     the employee to his/her own dismissals and may reduce
     the compensation awarded accordingly.
 •   Constructive dismissal issues.
Constructive Dismissal

• Definition –

  “…termination by the employee of his contract of
  employment… in circumstances in which, because of
  the conduct of the employer, the employee was or
  would have been entitled, or it would have been
  reasonable for the employee, to terminate the contract
  of employment…”
Constructive Dismissal

• Requirement for Employee to exhaust internal
  grievance procedures.

• Exception – Liz Allen –v- Independent Newspapers
  (Ireland) Limited (2002)

  - EAT accepted her evidence that she had no faith in
  internal procedures.
Burden Of Proof

•   Every dismissal is presumed unfair and onus on the
    employer to prove it was fair.

•   In Constructive Dismissal cases, onus on the
    employee to prove it was reasonable for them to
    resign and dismissal occurred.
Remedies

•   Re-Instatement

•   Re-Engagement

•   Compensation – maximum of 104 week’s
    remuneration if financial loss; if no loss maximum
    of 4 weeks.
Bullying & Harassment

• Legal status of “Bullying”

• Legal status of “Harassment”

• Tests to be applied
   – Bullying – Objective
   – Harassment - Subjective
Bullying & Harassment
S.8 (7) Harassment:-
The Equality Act 2004 now provides for new definition
of harassment and sexual harassment:-

• Harassment is any form of unwanted conduct in
  relation to any of its discriminatory grounds.
• Sexual harassment is any form of unwanted verbal,
  non-verbal or physical conduct of a sexual nature.

being conduct which in either case has a purpose or
effect of violating a person’s dignity.
Bullying & Harassment

• Bullying
  “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 in the course of employment, which
  could be reasonably regarded as undermining the
  individuals right to dignity at work”.

• Objective test
Bullying & Harassment

What Bullying Is Not
• Constructive and fair criticism of employee’s conduct
  or performance.

• Instructions issued by a Manager.

• Assignment of duties.

• Terms and conditions of employment.
  - Only repeated inappropriate behaviour specifically
  targeted at the recipient in order to undermine his/her
  dignity.
Employment Equality Acts 1998-2004

• S.6 of the 98 Act
• – 9 Grounds - Harassment
      • Gender
      • Marital status
      • Family Status
      • Age
      • Disability
      • Religion
      • Sexual orientation
      • Race/Ethnic Background/Nationality
      • Membership of the Traveller Community
Employment Equality Acts 1998-2004
• S.15 :- Makes employer Liable but also provides a
  Defence where the employer can show they took steps
  which were “reasonably practicable” to prevent

• Atkinson v Carthy & Others 2005 ELR 1: (C.Ct.)

• Failure to complain- no complaints procedure – open
  door policy

• Failure…to have in place adequate procedures renders
  them liable and by reason of failure of their statutory
  responsibility they are responsible and cannot plead
  immunity simply because the Plaintiff failed to
  complain
Data Protection

• Application by the Employee for all data

• Application not confined just to electronically stored
  information

• Complaints to the Data Commissioner

• Emails and archived files

• Monitoring Emails
Unfair Dismissals Act 1977 As
Amended
     Liz Allen v Independent Newspapers UD 641/2000 –
     August 2001
 –   Focus was response of management rather than validity
     of the complaints
 –   Decision to resign reasonable
 –   Distinguish between bullying and reasonable
     management prerogative
 –   Employees perception that they have been subjected to a
     hostile working environment must be “reasonable”
 –   Not enough for the employee to feel bullied- their
     perception must be reasonable.
 –   Response of management to complaints very relevant
Health & Safety
2005 Act –Duty re “bullying”
• S.8 (2) “..managing and conducting work
  activities…prevent so far as is reasonably
  practicable…improper conduct or behaviour likely to
  put health safety and welfare at work…at risk”

• S.2(6) “reasonably practicable”:- “..exercised all due
  care…necessary protective and preventative measures..”

• S.13(1)(e)”..not to engage in improper conduct or other
  behaviour that is likely to endanger his or her own safety
  health and welfare at work or that of any other person”

• 3 Codes of Practice
Employment And Stress Claims

Walker v Northumberland Co. Co. (1995)
• Social Worker, overworked went out sick as a result
  of a nervous breakdown
• Additional resources which were promised prior to his
  return never materialised
• Second nervous breakdown
• Dismissed on Health Grounds
• Decision; Employer on notice of risk to health.
• Employer responsible to second breakdown
Employment And Stress Claims

• Cross –v- Highlands and Island Enterprises 2001
   Excessive workload
   Lack of Assistance
   Out on stress leave
   Lighter workload on his return
   2 months later committed suicide
   Deceased Family unsuccessful in their claim
Employment And Stress Claims

McHugh –v- Minister for Defence 1999 Budd J
• Post Traumatic Stress after tour of duty in Lebanon

• Stress reasonably foreseeable

• Defendant failed to spot obvious manifestations or
  negligently failed to recognise the significance of the
  symptoms

• Failed to obtain remedial therapy
Employment And Stress Claims

Sutherland v Hatton- Ct. of Appeal, UK
   • Four Case in One
   • Sixteen pre-conditions / rules
   • No occupation recognised as being inherently
      more stressful that another
   • Other stress causing factors in life
   • EAP; discharge of duty of care?

Barber v Somerset (House of Lords)
•    Plaintiff succeed on appeal, but damages were
   reduced
Employment And Stress Claims

Intel Incorporation (UK) Limited –v- Tracy Ann Daw
    Court of Appeal 7th February 2007
    • Highly regarded employee doing intricate and complex
       work; heavy workload. 2 previous bouts of post-natal
       depression. 1 manager aware, 2 managers unaware

   • Injury forseeable from March breakdown in June

   • Support promised but not provided; move to another
     position would have damaged her career – opted to
     remain

   • Provision of counselling service – discharge duty of care
     depends on facts of each case – employee could not
     reasonably be criticised for not using it.
Employment And Stress Claims

• Intel Incorporation (UK) Limited –v- Tracy Ann Daw
   • Court of Appeal 7th February 2007

   • Solution was to reduce workload

   • In the present case the employees failure to give up
     her job did not eliminate the duty of care owed to
     her. “It is not a rule of law than an employee who
     do not resign when stresses at work are becoming
     excessive necessarily looses a right of action
     against her employer”

   • Award of £134,545.18 upheld
Employment And Stress Claims
• What did the employer know?

• Pre-employment medicals

• Complaints made “in confidence” or anonymously

• Employee Assistance Programme (EAP)

• S.8(2), 2005 Act; Obligation on employer to provide
  and maintain facilities and arrangements for the
  welfare of his/her employees at work
Employment And Stress Claims
• Foreseeability – Mental injury

• Curran v Cadbury Ireland (2000) ILRM 343

  C.Ct. Judge McMahon – Duties in H&S regulations
  included avoiding physical and mental injury even
  where the employer foresees physical risk only
Employment And Stress Claims

Quigley v Complex Tooling and Moulding
  • Lavan J 9 March 2005
  • Employer must take care of both physical and
    mental health
  • Obligation to protect against stress harassment and
    bullying in the workplace
  • Not isolated incidents but a campaign of bullying
  • Employee previously successful worker – never
    missed a day
  • Subjected to excessive scrutiny and unfair and
    unreasonable treatment
  • Overturned on Appeal 2008
Employment And Stress Claims
  McGrath v Trintech Technologies (2005) ELR –
    Laffoy J
  – Plaintiff worked in Uruguay alleged stress because of
    treatment by his superior in Dublin was on sick leave
    but didn’t notify employer of the cause. Returned to
    Ireland and took stress related sick leave. Made
    Redundant Previously suffered from depression but
    failed to notify Employer of this Plaintiff failed on the
    foreseeablity issue

     •   Each case decided on own facts
     •   Plaintiff suffered a recognisable psychiatric illness
     •   Failed in relation to foreseeability
     •   Opportunity to notify of problem but failed to do so
     •   Casual conversation not enough to put employer on
         notice re further enquiry
Employment And Stress Claims
•Maher v Jabil 12th May 2005 – High Court

Claim in respect of 2 issues (a) overwork (b) under-work
In relation to overwork no real evidence that demands
made were unreasonable compared to others
 • In relation to under-work no concerted plan to exclude
   the plaintiff from his employment
 • Foreseeability re workload
 • Plaintiff did suffer an injury due his working
   conditions
Employment And Stress Claims
 • Workload was no more than normal
 • Work was more demanding for Plaintiff but not
   reasonable to infer the employer should have
   known this
 • Demands made on Plaintiff were not unreasonable
   when compared to demands on others in the same
   or comparable jobs
 • No sign others suffered harmful levels of stress or
   that there was an abnormal level of absenteeism in
   the same job/department
Employment And Stress Claims
• Bullying requires objective analysis as distinct from harassment
  which requires subjective approach
• Cronin v Kostal Haugh J High Court Dec 2005 & Irish Times
  Law Report 27/2/2006:-Plaintiff required to account for
  productivity. Refused. Plaintiff failed in her action as the
  employer had not acted wit the intention of humiliating or
  embarrassing the Plaintiff and it had not , without justification,
  run the risk of injuring the Plaintiff. The Court considered that
  the bullying must be gratuitous or reprehensible conduct with the
  intention of humiliating or embarrassing.
• MALA FIDES element is new.
• Hickey v Health Insurance Authority Judge Smyth, C.Ct.
  3/2/2006
• In both cases employer’s action was deemed reasonable
  management , not bullying and harassment
Employment And Stress Claims

Byrne v Dunnes Stores 2003 ELR 297 Smyth J.
 • Mental distress from breach of contract
 • Forced to move location without opportunity to
    make representations
 • Behaviour was “inexcusably offensive “ and
    “reprehensible”
 • Single incident of “bullying” – does not fit into
    Code of Conduct definition but still the Court found
    the Plaintiff had been bullied
 • Employee of 25 years entitled to civilised treatment
 • Award of €27.295 for distress suffered over a period
    of months not years
 • No injunction to prevent move
Breach Of Contract, Employment &
Stress Claims
• Breach of Contract
   • Pickering v Microsoft High Court 21/12/2005 Smyth J
   • Breach of contract action; defendant breach implied
     term in contract re resolution of difficulties
   • Breach of term gave rise to psychological injury
   • Was the harm attributable to the breach of contract
     reasonably foreseeable
   • Court applied same principles re foreseeability required
     in a negligence/breach of duty action, to an action for
     breach of contract,
   • Hatton Principles applied – injury more serious than
     ordinary occupational stress
   • Foreseeable from when she attended Company’s
     medical advisers
Breach of Contract, Employment &
Stress Claims
Berber v Dunnes Stores Laffoy J 24/10/2006
   • Initially agreed to move based on representations
     regarding promotion

   • Experienced difficulties with the proposed move,
     and refused to move – suspended

   • Letter of complaint from solicitors – returned to
     work but frequent absences

   • Alleged repudiation of contract by employer
Breach of Contract, Employment &
Stress Claims
 • Judge felt letter from the solicitors re health should
   have rung alarm bells

 • Court did find in the absence of a written contract he
   could be transferred commensurate with his
   experience

 • Defendant would maintain mutual trust and
   confidence

 • Conduct objectively likely to cause serious damage
   to the relationship between employer and employee
   a breach of implied obligation may arise
Breach of Contract, Employment &
Stress Claims
 • In the absence of the information in the solicitors
   letter re health issues, the Plaintiff’s refusal would
   objectively be regarded as unreasonable if viewed in
   isolation

 • Manner in which employer dealt with the employee
   in the knowledge of the precarious nature of his
   health amounted to aggressive conduct…… serious
   damage to relationship…. breach of obligation of
   trust and confidence

 • Plaintiff justified in leaving on medical advice
   because of the employer’s repudiation
Breach Of Contract, Employment &
Stress Claims
• Personal Injuries Claim- Court found it un-necessary
  to distinguish between a claim in contract and Tort.

• Time Limit 2 years in negligence but 6 years for
  breach of contract. Judge had no problem is basing
  action in breach of contract

• Breach of Trust and Confidence - cause of action
Breach of Contract, Employment &
Stress Claims
Pickering –v- Microsoft 21st December 2005

• Plaintiff awarded €348,000. Psychiatric illness
  suffered following breach of contract by that company

• Court considered whether the harm arising from
  Breach of Contract was reasonably foreseeable;
  principles of reasonable foreseeability in negligence
  also applicable in contract?
Breach of Contract, Employment &
Stress Claims
Cronin v Eircom 25/10/2006 Laffoy J

• On secondment in UK but returned to Ireland
• no appropriate job between 2001 and 2005 but salary
  paid in full
• Contractual right to be provided with work so that she
  could gain experience pursue promotion and advance
  her career
• No general damages as no proof of any injury over
  and above ordinary stress
Breach of Contract, Employment &
Stress Claims
• Damages
   – Loss of earnings during suspension, investigation,
     disciplinary hearing and appeal hearing?

   – Loss of earnings until re-employed?

   – Pay differential pending recovery of career

   – Remuneration v Salary

   – General Damages
Breach of Contract, Employment &
Stress Claims
• “Right” to return to work

• Application for Light duties, no right to light duties

• No injunction to compel return to work

• Injunction to continue at work pending disciplinary
  action?

• Carroll v Dublin Bus 2005 ELR 192
Breach of Contract, Employment &
Stress Claims
• Settlement of stress/injury claim?

• Attendance of Employer at talks

• Employer’s contribution to Settlement; Calculation
  of Severance

• Claim to be handled by Insured or Insurance
  Company?

• Access to pre-employment medical information-
  personnel file
Breach of Contract, Employment &
Stress Claims
• Injunctive Relief ?

• PIAB

• Costs – significantly higher than other P.I. claims

• Likely duration of action even in the Circuit Court

• Judicial view of these claims
Taxation Of Compensation
• 1 or 2 sets of proceedings; 1 or 2 settlement
  agreements?
• Distinguish between compensation for Personal Injury
  (stress) and severance payment
• Personal Injury payment tax free
• Termination payment has specified tax free
  allowances

   – €10,160 + €765 per year of service
   – Special once off extra €10,000, subject to revenue
     approval
   – Legal Costs to be specified and paid separately
   – SCSB calculation

								
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