Hospital supervisor wins landmark appeal over workplace bullying

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Michelle Hayes, Hayes Solicitors. Pic: Cian Reinhardt

A SUPERVISOR who was intermittently bullied by the staff she supervised at University Hospital Limerick has been successful at the Court of Appeal in overturning the decision to dismiss her case for damages.

According to her solicitors, the verdict extends the law on employer liability in relation to employees and imposes a higher duty of care on employers.

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Geraldine McCarthy sued ISS Ireland and HSE after she was subjected to five separate incidents of intimidation, shouting, abusive and unwelcome conduct in her workplace at University Hospital Limerick (UHL).

Employed by ISS Ireland at UHL, Ms McCarthy claimed that the incidents of unacceptable conduct were perpetrated by fellow employees under her supervision and when she complained to her superiors no action was taken.

The case was heard at the High Court by former High Court President Mr Justice Kearns who dismissed Ms McCarthy’s case on the basis that ISS Ireland was not liable to her over the actions of her fellow employees.

He said that the incidents were isolated and unrelated There were several months between each incident and involved different employees.

However, Ms McCarthy appealed the ruling of the High Court through her solicitor, Michelle Hayes, of Hayes Solicitors to the Court of Appeal.

Overturning the decision of the High Court, the three judge Court of Appeal after it was convinced of the cumulative effect of the various incidents that Ms McCarthy was subjected to, the breaches of health and safety which had occurred, the failure of the employer to provide a safe place of work, and the failure of ISS Ireland to investigate each incident following the complaints made and to take action to prevent a recurrence.

Commenting on the decision of the Court of Appeal, solicitor Michelle Hayes said that the case extends the law on employer liability in relation to events of this nature in the workplace involving fellow employees.

Outlining that supervisors such as Ms McCarthy would not have a remedy before this ruling.

“The case imposes a higher duty of care upon employers. In Ms McCarthy’s case, the Court of Appeal ruled that the employer had breached its duty of care to Ms McCarthy, had failed to provide a safe place of work and was negligent.

“The judgement is of particular importance to employers and employees when considering potential employer liability for inter-employee events in the workplace,” she added.

In its ruling, the three judge court said that the incidents caused stress and anxiety to Ms McCarthy and resulted in her leaving her employment.

Justices Peart, Hogan and Whelan concluded that Mr Justice Kearns erred in dismissing Ms McCarthy’s case

Despite referring to Ms McCarthy as “a very genuine person” who “was doing her best”, he was wrong to suggest that ISS Ireland was not liable to Ms McCarthy for the actions of fellow employees under her supervision.

ISS Ireland failed to provide a safe place of work at UHL and was therefore negligent.

Mr Justice Peart said that Ms McCarthy was not the employer of those whom she supervises, yet she has authority over them. She can both direct the work they are to do, and check that it has been done correctly. It is the sort of role that can potentially bring her into conflict with those under her supervision.

“I would consider it reasonable that an employer of such a supervisor should have a particular duty of care towards a supervisor, and to anticipate that such conflict might occur, and to have procedures in place to minimise such conflict and to deal with it when it occurs so as to prevent as far as reasonably possible any recurrence.”