Introduction – Workplace Stress, Employer Liability and Employee Claim
The case of Catherine (Tina) McCormack -v- Health Services Executive (HSE) ([2021 IECA272]), provides a useful reference point to the duty of care expected by an employer to an employee, and the responsibility of the employee to cite specific examples of incidents leading to that stress, if a personal injury claim in respect of that stress is to have any chance of success.
Background to Claim for Workplace Stress
Ms McCormack issued proceedings against the HSE claiming damages for personal injuries allegedly arising to her in the course of her work. In summary, Ms McCormack was employed as a health care worker by the HSE at a facility in Limerick. The facility was described as “a high support residence”. Ms McCormack claimed that from 2013 onwards, the HSE began to admit patients who were unsuitable to the facility owing to their violent and aggressive behaviour which constituted a danger to her health and safety as well as other patients.
Mr McCormack alluded to two particular incidents which she claimed had a long and lasting effect on her. Both related to the suicide or attempted suicide of patients under the care of the HSE at the facility.
Workplace Stress – Statement of Claim
Ms McCormack further noted that she had been continuously exposed to a risk of injury and did not feel safe at work. She noted that, in consequence of the foregoing, she was caused to sustain severe personal injuries, loss and damage. Ms McCormack claimed that the injuries, loss and damage she suffered were caused by the negligence and breach of duty, including a breach of statutory duty, of the defendant, the HSE, pointing to the following particular breaches of duty owed to her, names that the HSE:
- Caused or permitted the HSE to admit persons unsuitable for the facility;
- Failed to provide any or any adequate training for staff;
- Failed to provided adequate staff;
- Failed to provide or procure adequate supervision of patients;
- Failed to have any or any adequate regard to an increase in incidents concerning patients, and/or failed to take corrective action or advise staff on foot of the escalation in incidents;
- Failed to have any or any adequate regard to the risk of violence or aggression occurring;
- Failed to provide staff with any or any adequate means or permission to restrain patients whose behaviour constituted a risk to themselves or to others;
- Failed to conduct any or any adequate risk assessment of patients;
- Failed to provide a safe system of work;
- Failed to implement any or any adequate system for managing volatile patients;
- Failed to manage or conduct a system of work such that the plaintiff would not be exposed to the risk of injury;
- Failed to have any or any adequate regard to the safety of the plaintiff;
- Caused, procured and/or permitted the plaintiff to be exposed to workplace stress in the course of her employment;
- Failed to take any or any adequate measures to prevent or limit occasions of stress in the course of the plaintiff’s employment;
- Caused, procured and/or permitted the plaintiff to work in an environment which constituted a hazard to her health and wellbeing;
- Exposed the plaintiff to a risk of which it was aware or ought to have been aware;
- Failed to comply with the provisions of the Safety, Health and Welfare at Work Act 2005 and/or regulations made and/or preserved thereunder.
Details of Workplace Stress
However, Ms McCormack was criticised for not providing any or sufficient details of incidents of violent of aggression at any time during the period in which she claimed to suffer these injuries. The court held that Ms McCormack was claiming, in effect, that she did not feel safe at work on account of an increase in the violent and aggressive behaviour of patients, she should have therefore provided additional particulars of such incidents in support to her application.
Takeaway
While it was generally accepted that one would not necessarily expect Ms McCormack to recall the dates and times of all incidents, the failure to provide any particulars of all of the events complained of save for the two cited, gave the impression that the incidents were of such an inconsequential nature that they could not be or would not be relied upon in court.
The takeaway for employees, is to have as many and as detailed as possible references, to the incidents that caused the excessive workplace stress, in your statement of claim, when issuing proceedings.
