Interaction between Employment Law and Personal Injuries Fergus Long Partner

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Overview Employers Liability and Employment
Practices Insurance Fergus LongPartner
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• What type of policy does the insured have?
• What does the policy cover? Bodily Injury v
  Personal injury?
• Level of cover under Employers Liability policy?
• Level of cover under Employment Practice Policy?

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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

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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?

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Recruitment

• Advertising
• Application Forms
• Interviews
• Medical Examinations
• Equality Issues

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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.

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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.

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Data Protection Considerations

• Storing of information
• Appropriate security measures.
• Limited access.
• Do not retain info indefinitely.
• Keep info long enough to defend proceedings!

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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.

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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.

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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

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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.

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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

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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.

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Absence Management Policies

• spell out employees 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 employees doctor with the
  employees consent.
• include provisions for return to work interviews
  (identified as the most effective intervention to
  manage short term absence).

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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.

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Short Term Absence Case Law

• ENC Dairy Products Limited v- Connolly
• Tribunal held it was reasonable for the Company
  to-
• conclude that the employees health is unlikely
  to improve in view of his history and
• In view of the nature that declared illness, that
  any further medical assessment would not assist
  in assessing the employees probable future
  attendance at work
• That the enquiry of the Company was full and fair
  in this case
• That it was not unreasonable for the Company,
  after such full and fair enquiry to conclude as
  they did and the employees employment should be
  terminated.

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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.

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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

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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 employees symptoms and complaints.
• The Tribunal held that the Company could not be
  faulted for coming to the conclusion that the
  employees attendance would not improve and the
  Tribunal felt that the Company was justified in
  saying enough is enough and dismissing him.

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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.

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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.

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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 employees working hours.
• - accommodating the employees mobility.

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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.

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Long Term Absence

• Bolger v- Showerings Ireland Limited
• High Courts 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.

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Disability

• Disability defined as-
• Total or partial absence of a persons bodily or
  mental functions including the absence of a part
  of the persons 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 persons 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
  persons thought process, perception of reality,
  emotions or judgement or which results in
  disturbed behaviour.

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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.

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Disability Discrimination

• PHI Insurance contractual right?
• Termination before benefits exhausterd? breach
  of contract?
• Status of employee while on PHI long term?

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Reasonable Accommodation

• Reasonable accommodation may include-
• making physical adjustments to the workplace
• allocating some of the disabled persons duties
  to another person
• transferring the disabled person to another
  vacant post, with or without reasonable
  adjustments being made
• altering the disabled persons 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.

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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.

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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.

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Termination Of Employment

• Unfair Dismissals
• Constructive Dismissals
• Breach of Contract Express and Implied Terms
• Grievance Disciplinary
• Codes of Practice
• Sick Pay Occupational Stress

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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.

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Scope Of Legislation

• To whom does the Legislation apply?
• One years 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.

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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 years 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.

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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.

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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.

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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 carers leave (Carers Leave
  Act, 2001).
• Dismissal on one of the nine discriminatory
  grounds in the Employment Equality Acts Claim to
  Equality Tribunal.

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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.

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Grounds For Automatic Unfair Dismissal

• Entitlement /exercise of rights under National
  Minimum Wage Act, 2000.
• Exercise of right to adoptive leave/carers
  leave/parental leave.
• Civil/Criminal proceedings against an employer
  actual or threatened.
• Unfair selection for redundancy.
• Exercise of right to maternity leave.

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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.

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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.

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Oleary 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.

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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.

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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 employers 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.

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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

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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.

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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.

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Remedies

• Re-Instatement
• Re-Engagement
• Compensation maximum of 104 weeks remuneration
  if financial loss if no loss maximum of 4 weeks.

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Bullying Harassment

• Legal status of Bullying
• Legal status of Harassment
• Tests to be applied
• Bullying Objective
• Harassment - Subjective

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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 persons dignity.
• Harassment Subjective Test

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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

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Bullying Harassment

• What Bullying Is Not
• Constructive and fair criticism of employees
  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.

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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

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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
• Failureto 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

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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

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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

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Health Safety

• 2005 Act Duty re bullying
• S.8 (2) ..managing and conducting work
  activitiesprevent so far as is reasonably
  practicableimproper conduct or behaviour likely
  to put health safety and welfare at workat risk
• S.2(6) reasonably practicable- ..exercised
  all due carenecessary 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

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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

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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

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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

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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

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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.

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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

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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

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Employment And Stress Claims

• Foreseeability Mental injury
• Curran v Cadbury Ireland (2000) ILRM 343
• C.Ct. Judge McMahon Duties in HS regulations
  included avoiding physical and mental injury even
  where the employer foresees physical risk only

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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

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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 didnt 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

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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

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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

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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 employers action was deemed
  reasonable management , not bullying and
  harassment

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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

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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 Companys
  medical advisers

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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

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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

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Breach of Contract, Employment Stress Claims

• In the absence of the information in the
  solicitors letter re health issues, the
  Plaintiffs 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 employers repudiation

78
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

79
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?

80
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

81
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

82
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

83
Breach of Contract, Employment Stress Claims

• Settlement of stress/injury claim?
• Attendance of Employer at talks
• Employers contribution to Settlement
  Calculation of Severance
• Claim to be handled by Insured or Insurance
  Company?
• Access to pre-employment medical
  information-personnel file

84
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

85
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