High Court of Ireland Decisions

Neutral citation no. [2005] IEHC 197

THE HIGH COURT

[2002 No: 2716P]

BETWEEN/

BRYAN FOLEY

PLAINTIFF

- and - COUNTY WATERFORD VOCATIONAL EDUCATION COMMITTEE

DEFENDANT

DECISION OF THE MASTER OF THE HIGH COURT 17^TH JUNE 2005.

The plaintiff, (then just into his sixties), began to feel stress at work in the first half of 2000. He is an adult education teacher and was employed by the defendant in its Vocational Training and Opportunities Scheme in Dungarvan.

He started to worry, and experienced difficulties with sleeping and loss of appetite. He lost interest in his outdoor hobbies and began to smoke more heavily. In June 2000 he visited his G.P. A diagnosis of borderline clinical depression was suggested but he chose to try and deal with it without going on anti-depressants. Unfortunately things did not improve and by September 2001 he had to start on these and on sleeping tablets. He stopped work in early 2002 and later that year was diagnosed by a psychiatrist as suffering from a depressive adjustment disorder. Stress at work was identified as the cause. The plaintiff was noted to have a sense of injury and stigma. The prognosis is (2003) unclear and his cigarette consumption is up from ten a day to sixty.

His case against his employer is that his experiences in the workplace since January 2000 have caused his illness, and he is claiming general damages. (He has not particularised any special damage).

The plaintiff's case is yet another example of a type of case which is being seen much more frequently in recent years. Sometimes the stress comes in the form of institutional changes or management changes as to for example, workload, productivity, sales targets and the like. Sometimes it is bullying or harassment in the workplace, but not directly related to workload: just damaging personal relationships between co-workers about which management is ignorant until it is notified by the victim. And sometimes it may be that it is the victim himself who finds that the going has become tougher though no change has occurred except in his own capacity to handle his job. This case is one where the plaintiff alleges that he has been publicly belittled by his immediate superior, but also where the plaintiff feels the defendant institution compounded the problem by failing to respond appropriately to his complaints about the behaviour of the said superior.

In any case centred on bad workplace relationships, up to and including harassment, the employer cannot be faulted for a failure to get to grips with the situation unless it can be clearly demonstrated that it had, one way or another, become aware of the incidents (or of a previously established propensity of the perpetrating employee) of which a plaintiff complains. The duty to respond is triggered by the complaint. In the absence of knowledge of offensive behaviour by an employee, the employer cannot be blamed for inaction in respect thereto. Without such actual knowledge one employee looks, to an employer, much the same as any other: no one is known to be a "hazard" until he behaves as such.

In the U.K. Court of Appeal decision Hatton v. Sutherland [2002] 2 A.E.R. 1 – four cases of psychiatric illness caused by stress at work – the only plaintiff to be awarded damages was the employee whose employer knew he was being badly treated by another employee and could have done something to prevent it. The principles outlined in the judgement of Hale L.J. in that case have recently been approved as guidelines in this jurisdiction by Laffoy J. in McGrath v. Trintech Technologies Limited and Anor. (29^th October, 2004) (subject to her qualification that all cases ultimately depend on their own facts) and include statements of law such as that "an employer is usually entitled to assume that an employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability" and that "to trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it".

It is the behaviour of two of his superiors towards him in 2000 and 2001 which forms the basis of the plaintiff's assertion that the working environment deteriorated. They were aggressive and "disrespectful". (They were unpleasant to other staff members as well, but these complaints surely play no part in the plaintiff's case). The Adult Education organiser, Mary Walsh, several times marched into his class and belittled the plaintiff. A written report on him, of which he learnt indirectly, contained facts which were out of context, and construed unfavourably against the plaintiff. Lavelle created doubts about job security.

But when pressed for particulars of the (all important) complaint, the plaintiff is curiously vague. Did he complain? If so, what about… precisely? "Difficulties were raised on 19^th May, 2000." The CEO was "aware of the nature of the problems and discussed several issues". "Complaints were made on a regular basis." "Matters were discussed by the VEC Committee members on several occasions", "Complaints were also made to the TUI… to local TD's… to the Department of Education". "The defendant was well aware of the nature of the complaints being made by the plaintiff at this time." "Other colleagues had similar complaints." "The defendant refused to engage the concerns of the plaintiff and his colleagues."

In the routine of any workplace, regular exchanges between personnel take place and there is tension. What the court in this case is being asked to do is to judge whether certain exchanges between Walsh or Lavelle and the plaintiff constituted unacceptable behaviour in the nature of harassment or even bullying. It appears that it will also be asked to rule on whether subsequent discussions about such exchanges constituted complaints of a degree of formality which demanded follow-up investigation and action by the employer.

In short (and construing the case most liberally in the plaintiff's favour) the case will turn on the evidence of the offensive behaviour and on evidence as to the actual knowledge (usually in the form of a complaint) of the defendant as to a deteriorating workplace environment Then the Court will consider the adequacy of the management response thereto. The extent of the response called for depends on the foreseeability of injury to the complainant if the misbehaviour is not dealt with.

Now turning to the request for discovery of documents. The plaintiff seeks five categories:-

(a) The plaintiff's personnel file.

(b) All reports made by or for the defendant which refer to or concern the plaintiff or the plaintiff's position as an adult education teacher.

(c) Documentation regarding all complaints made by the plaintiff.

(d) Documentation regarding all investigations made by the defendant as a result of complaints made by the plaintiff.

(e) Documentation regarding all complaints made by students about Mary Walsh.

It is only categories (c) and (d) which correspond to the plaintiff's case as analysed above. (e) clearly refers to peripheral facts and unpleaded ones at that. (b) would be a possibility but only in respect of the report identified in the Statement of Claim and only if the plaintiff averred to not having had sight of same: clearly (and here I note the lengthy particulars) he has seen it.

I would normally make an order for (c) or some more focussed category along these lines. I find, however, in this case that the pleadings are wholly imprecise. Discovery "regarding all complaints" really encompasses discovery regarding all conversations about the plaintiff's treatment at the hands of his fellow workers. The plaintiff should be required to further particularise his "complaints" (date, to whom, content etc.) before he is permitted to trawl the defendant's documents for what , after all, is merely evidence confirmatory of his own evidence of the making of a complaint.

Category (d) concerns the process of management response to the plaintiffs complaint. But does the plaintiff need to prove this? Surely the only relevant omission on the part of the employer is the failure to ensure that the plaintiff was involved in and kept informed of the progress and outcome of the disciplinary steps.

In her judgment in the McGrath case [2004] cited above, Laffoy J. observed that the issue was not whether the stress the plaintiff suffered was caused by work, but whether the stress induced injury was a consequence of a breach by the defendant of its duties of care (statutory or common law). The extent of employer's obligation to take reasonable steps to reduce the risk of foreseeable injury was to be measured "bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it and the justifications for running the risk". In the McGrath case, Laffoy J. ruled that "insofar as there were signs of vulnerability on the part of the plaintiff and possible harm to his health these were adequately addressed by the defendant" and "having done what was reasonable in the circumstances, the defendant did not breach its duty of care and has no liability to the plaintiff either in contract or in tort".

But this case is a harassment case, not a work stress case. The plaintiff wanted to see the complaint system working as he hoped it would. At the heart of most of these harassment cases is a simple proposition: the plaintiff's distress is his response to the information he has at any particular point of time. It he knows he did not receive a letter replying to his letter of complaint it is that knowledge which distresses him, and his distress is nonetheless real even if the employer had actually, unbeknownst to him, carpeted and rebuked the offending fellow employee: the employer's error lies in his failure to bring the fact of disciplining of the offender to the attention of the plaintiff. The plaintiff's complaint, in the plaintiff's eyes, remains unresolved, the perpetrator still at large and perhaps apparently unrepentant and the plaintiff continues to experience stress.

What I have to decide at this stage is what evidence the plaintiff needs to prove the employer's negligence. Although he is alleging that the complaints were not processed, "expeditiously and fairly", it is his perception of the events (to that effect) which is the corner stone of the case, rather than the actuality of the employer's complaint solving process. Of course, his perception may very well correspond to the actuality, but if it is at variance with it, it is surely the employer's fault that the plaintiff was not, at the appropriate time, properly and fully appraised of the facts, or was not able to judge the outcome for himself by deduction from the cessation of the behaviour complained of, or from the removal of the offending co-worker from the work place. Either way, the facts as then known to the plaintiff were the immediate cause of his stress.

Accordingly, it is logically and necessarily the plaintiff's own evidence of that state of knowledge (at the material times) which is the only basis on which he can prosecute the case.

He cannot now, some five or six years later, be permitted to "feed" that recollection by accessing the defendant's file and perhaps learning more than he knew at that time. Curious and all though he may be, he has no "need" to see the defendant's files. He has his own evidence as to his state of knowledge back in 2000. That is all he needs to make his case.