The Court of Appeal has found a cleaning company negligent for failing to take reasonable steps after a hospital cleaning supervisor reported hostility and aggression from staff she oversaw. It allowed her appeal against the dismissal of her personal injuries claim and remitted the case to the High Court to determine causation and damages.
The judgment, delivered by Mr Justice Michael Peart on 13 August 2018, concerns five separate incidents between May 2009 and February 2011 at the Mid-Western Regional Hospital in Dooradoyle, Limerick. The supervisor alleged that different staff members shouted at or threatened her, causing cumulative stress and anxiety that ultimately led her to leave her job. She said she reported each incident and that her employer failed to take adequate action.
The appeal court rejected the claim that the employer was vicariously liable for the individual incidents. It held that, although the aggressive conduct amounted to technical assaults, it was not committed in the course of the employees’ work in the relevant legal sense. It also agreed there was insufficient evidence of a workplace culture of bullying.
However, the court found that the employer owed the supervisor a duty of care that took account of her role directing and checking the work of other employees, which could bring her into conflict with them. After being notified of the incidents and the distress they caused, the employer had to take reasonable steps to address them and reduce the chance of recurrence. The duty did not require it to guarantee that no further incident would occur.
The employee’s industrial relations witness criticised the employer’s response and said its complaint procedures were not followed. The Court of Appeal noted that the defendants called no evidence to contradict the plaintiff’s witnesses. It found that the employer had not taken adequate steps to investigate and address the complaints, and that this breached its duty to provide a safe place of work.
The court said the trial judge had erred by considering the claim only as one of workplace bullying. It did not send the negligence issue back for another trial: because the defendants had chosen not to call evidence, the Court of Appeal concluded that the employer was negligent. The appeal was allowed, but the court did not decide causation or the amount of any damages. Those issues were remitted to the High Court. The judgment records that the plaintiff accepted her case was against her employer, ISS Ireland Limited, rather than the Health Service Executive, which owns the hospital.